United States v. Aker

Opinion

USCA1 Opinion

                 United States Court of Appeals

                     For the First Circuit


No. 98-1900



                    UNITED STATES OF AMERICA,



                            Appellee,



                                v.



                          ALAN A. AKER,



                      Defendant, Appellant.


APPEAL FROM THE UNITED STATES DISTRICT COURT



                FOR THE DISTRICT OF MASSACHUSETTS



           [Hon. Robert E. Keeton, U.S. District Judge]


Before



                     Torruella, Chief Judge,

                                

                Campbell, Senior Circuit Judge,

                                

                   and Boudin, Circuit Judge.


Lois M. Farmer, by appointment of the court, with whom Garnick

& Scudder, P.C. was on brief for appellant.

     James F. Lang, Assistant United States Attorney, with whom

Donald K. Stern, United States Attorney, was on brief for the

United States.


June 28, 1999


BOUDIN, Circuit Judge.  Alan Aker pled guilty to two drug

offenses and one firearms offense and was sentenced to 121 months

in prison.  He now appeals, saying that the district judge should

have allowed him to withdraw his guilty plea and that the judge

erred in fixing his sentence.  The facts that follow are drawn from

the pre-sentence report and the testimony in the district court. 

United States v. Egemonye, 62 F.3d 425, 426 (1st Cir. 1995).

  In September 1993, the police obtained a warrant to

search Aker's house and car for cocaine and paraphernalia.  After

watching Aker conduct from his car an apparent drug transaction,

the police searched the car, finding two bags of cocaine (a total

of 6.7 grams) in the driver's-side ashtray, a handgun in the glove

compartment, and an additional 27.3 grams of powder cocaine and

26.6 grams of crack cocaine hidden in a cooler in the back of the

car.  On his arrest Aker was carrying $1,084 in cash, and a search

of his house revealed another 1.33 grams of crack cocaine and seven

firearms, four of which were stolen.  

  Aker was then indicted by a grand jury and released

pending trial.  By a superceding indictment returned in September

1994, Aker was charged with four offenses: possession with intent

to distribute cocaine, 21 U.S.C. 841(a)(1); possession with intent

to distribute cocaine base, id; use and carriage of a firearm

during and in relation to a drug trafficking crime, 18 U.S.C.

924(c); and possession of stolen firearms, 18 U.S.C. 922(j). 

These charges were pending against him when his trial began about

a year later.

  After his indictment but before trial, the police

witnessed another apparent drug transaction involving Aker.  On

March 14, 1995, a confidential informant set up a monitored

purchase with Aker, who told the informant that he (Aker) would

leave an agreed-upon amount of drugs under a designated dumpster. 

After the confidential informant provided Aker with the money, the

police found the designated drugs (6.5 grams of crack cocaine)

under the dumpster.  This incident was not included in Aker's

indictment and conviction, but it was considered relevant conduct

for the purposes of sentencing.

  At Aker's trial in June 1995, Aker's lawyer admitted in

his opening that the drugs in the front of Aker's car belonged to

Aker but said they were intended for personal use and that Aker

knew nothing of the drugs in the back; the latter, said counsel,

had been placed there by Tony Jones, the boyfriend of Aker's sister

Karen.  Two days later, as the trial continued, the prosecutor

advised the defense that he had learned that Tony Jones was an

informant for the Fitchburg police and that Jones had denied owning

the drugs in the back of the car; instead, Jones claimed to have

agreed with Aker to testify falsely that the drugs belonged to

Jones.

  Aker then struck a deal with the government, which agreed

to dismiss the firearm count under section 924(c) in exchange for

Aker's guilty plea on the other three counts.  Since section 924(c)

carries a mandatory consecutive sentence of five years, 18 U.S.C.

924(c)(1)(A)(i); U.S.S.G.  2K2.4, the benefit of the bargain to

Aker was obvious.  The judge conducted a change of plea hearing in

which Aker admitted that he had committed the drug crimes charged

in the indictment and had known that firearms kept in his house

were stolen.  The judge accepted the guilty pleas to the three

counts in question, dismissed the 924(c) count, and ordered a pre-

sentence report.

  The first pre-sentence report (there were later

amendments) was issued in August 1995 and was contested in several

respects by Aker's attorney.  Delays then ensued. Aker's trial

attorney withdrew in January 1996, and in April 1996, Aker filed a

pro se motion to withdraw his guilty plea.  A new defense counsel

was appointed and a psychological evaluation obtained for Aker.  On

April 6, 1998, the district court held a hearing on Aker's motion

to withdraw the guilty plea and received testimony--discussed

below--from Aker, his sister Deborah, and Dr. Ebert, the

psychologist retained to examine Aker.

  Following the hearing, the district court denied Aker's

motion to withdraw his guilty plea.  Thereafter, Aker filed a

motion in May 1998, requesting a downward departure.  At sentencing

on July 15, 1998, the district court denied the departure request

and also refused to make a reduction in the offense level for

acceptance of responsibility.  Instead, attributing to Aker the

drugs seized in September 1993 and March 1995, the court computed

the base offense level at 28, enhanced this figure two levels for

possession of the gun found in the glove compartment, and sentenced

Aker (at the bottom of the resulting range) to 121 months.

  On appeal, Aker's first claim is that the district court

erred in refusing to allow him to withdraw his guilty plea.  The

district court may permit withdrawal of a guilty plea before

sentencing if the defendant shows this to be "fair and just," Fed.

R. Crim. P. 32(e); but the district court's findings of fact are

reviewed only for clear error, and "we accord considerable

deference to the firsthand assessment ultimately made by the

district court, which must be affirmed absent a demonstrable abuse

of discretion."  United States v. Marrero-Rivera, 124 F.3d 342, 348

(1st Cir. 1997).

  There is no exclusive list of reasons that might allow

withdrawal of a plea, but a primary concern is whether the original

guilty plea was knowing, intelligent and voluntary under Fed. R.

Crim. P. 11.  Marrero-Rivera, 124 F.3d at 347.  Other factors

commonly mentioned are the plausibility and weight of the reason

given for the withdrawal, the timing of the request, whether the

defendant is now colorably asserting legal innocence, and whether

the original plea was pursuant to a plea agreement (and thus, in

the usual case, gained something for the defendant).  Id.  

  When Aker pled guilty in 1995, Rule 11 was followed to

the letter, and Aker squarely admitted that all of the drugs in the

car were his and that he knew that some of the guns in the house

had been stolen.  Aker's best argument for involuntariness is, as

Dr. Ebert testified, that at the time of the plea Aker was

depressed over his wife's death (which allegedly led to his

involvement in drugs), had gone without sleep during the trial, and

had difficulty concentrating.  Further, says Aker, his attorney had

indicated that Aker was headed for conviction and stressed the

benefit of getting the section 924(c) count dismissed.  All of

this, it is argued on appeal, made his plea less than voluntary.

  However, Dr. Ebert testified only that Aker was depressed

and the district judge found that Aker "was never depressed to a

degree that deprived him of the capacity to make a knowing and

voluntary choice . . . ."  The district court also discounted Dr.

Ebert's testimony because the court found it was based in part on

crediting statements Aker made to Dr. Ebert, statements that the

court said were materially false.  No doubt at some point mental

afflictions can undermine a guilty plea, but in this instance the

district court's assessment was certainly not clearly erroneous.

  Aker also says that he did not understand that dismissal

of the section 924(c) count left the district judge free in

computing the sentence to add two levels because the gun was found

in the glove compartment.  U.S.S.G.  2D1(b)(1).  The two-level

adjustment, which the judge might or might not find warranted, was

a far cry from a mandatory five year minimum sentence, to be served

consecutively to other sentences, that would have followed

automatically from a conviction under section 924(c).  Whatever

Aker may have supposed, he got just what the government promised,

namely, a dismissal of the section 924(c) charge.  A guilty plea is

not vulnerable merely because the defendant's own expectations as

to the guideline range go amiss.

  Aker's other potential argument in favor of withdrawal,

although not much stressed on this appeal, was a claim of innocence

at least as to the drugs in the back of the car, including the

crack that gave rise to a heavy sentence.  At the change of plea

hearing, Aker testified--contrary to his earlier alibi--that the

drugs belonged to his sister, Deborah.  What made this less

farfetched was that Deborah also so testified at the hearing,

although her version of events would have made her guilty only of

possession and not of trafficking.  It is enough to say that the

district judge was not clearly erroneous in choosing to credit

Aker's outright admission in the plea hearing that all of the drugs

were his.

  Aker himself admitted that his desire to withdraw the

guilty plea was prompted, at least in part, by two other factors.

One was that, contrary to Aker's hope, Congress failed to agree to

a proposed reduction in the guideline sentences for crack cocaine. 

The other was that  the Supreme Court's intervening decision in

Bailey v. United States, 516 U.S. 137 (1995), stiffening the

requirements for conviction under section 924(c), made the

dismissal of that count somewhat less valuable than at first

appeared.   Neither of these motives goes to the voluntariness of

the plea or Aker's guilt on the counts to which he pled guilty, and

both suggest that Aker's involuntariness claim owed something to an

after-the-fact recalculation of risks and rewards.

  Aker's next ground of appeal is his claim that the

district court miscalculated his guideline range in three different

respects: the firearms enhancement, the obstruction of justice

enhancement, and the denial of a reduction for acceptance of

responsibility.  We review the district court's findings of fact in

sentencing for clear error, see United States v. McDonald, 121 F.3d

7, 9 (1st Cir. 1997), cert. denied, 118 S. Ct. 725 (1998), and

determinations of law de novo, see United States v. Fontana, 50

F.3d 86, 87 (1st Cir. 1995).  Departure denials are subject to more

restricted review.

  Starting with the firearms enhancement, the critical

point is that section 924(c)'s "use or carry" language and the

restrictive gloss from Bailey are not used in the guideline. 

Instead, U.S.S.G.  2D1.1(b)(1) prescribes a two-level enhancement

for drug trafficking crimes "[i]f a dangerous weapon (including a

firearm) was possessed," and the commentary explains that

possession alone is enough; because of the increased danger posed,

the enhancement should be applied "if the weapon was present,

unless it is clearly improbable that the weapon was connected with

the offense."  U.S.S.G.  2D1.1, app. note 3; United States v.

Berrios, 132 F.3d 834, 839 (1st Cir. 1998).  

  Here, Aker had the gun in the glove compartment of his

car while transporting and dealing drugs.  The claim that he merely

possessed drugs for his own use was refuted by his guilty plea and

by his witnessed involvement in at least one, and arguably two,

sales.  This is nothing like the case, which the guideline note

says does not warrant enhancement, of a defendant arrested at home

who happens to have "an unloaded hunting rifle in the closet." 

U.S.S.G.  2D1.1, app. note 3.  In all events, the district court

did not clearly err in finding that the gun was present and in

explicitly declining to find that weapon was unconnected with the

offense.

  Aker next attacks the two-level enhancement imposed under

U.S.S.G.  3C1.1; it applies where the defendant willfully

obstructed, or attempted to obstruct, the administration of justice

during the prosecution of the case.  Examples include perjury,

attempted subornation of perjury, and providing materially false

information to a judge.  Id., app. notes 3(c), 3(f).  On appeal,

Aker says that the trial judge was confused in his appraisal of

false statements Aker allegedly made to Dr. Ebert and that the

record lacks the kind of particularized findings allegedly needed

to establish a willful obstruction of justice. 

   Although particularized findings are certainly helpful,

cf. United States v. Dunnigan, 507 U.S. 87, 95 (1993), the ultimate

question is whether the district judge did find a willful

obstruction or attempted obstruction and whether the evidence

supports these findings.  In this case, the district court's

ultimate finding is explicit and the evidence was ample to show

Aker's knowing participation in a scheme with Jones to provide

false evidence as to ownership of the drugs in the back of the car. 

The district judge explicitly relied on this event, referring at

the sentencing to Aker's decision to "choose the course  . . . of

encouraging false testimony . . . ."

  It is unclear from the transcript whether the judge was

relying at all on false statements made to Dr. Ebert; but even if

that episode is disregarded,  the Jones episode was clearly in the

district court's mind and was a sufficient basis for the

enhancement.  The district court also relied on "false testimony"

presented by Aker himself in court--apparently referring to Aker's 

post-plea denial that he owned the drugs in the back of the car. 

This too was a permissible basis for an obstruction enhancement

since, if the testimony was false (and it contradicted the plea),

it was certainly willful.

  The district court's refusal to accord a reduction in

offense level for acceptance of responsibility needs less

discussion.  Aker went to trial, pled only when his perjury scheme

was foiled, dealt drugs while on release, and lied to the district

court on more than one issue.  On this record, no judge would

likely have  found acceptance of responsibility, and the denial was

certainly not clear error.  Aker is fortunate not to have been

independently prosecuted for obstruction and for the second drug

offense.

  Finally, Aker says that the district court erred in

refusing to grant him a downward departure.  He sought such a

departure on the grounds that, inter alia, his conduct was

"aberrant behavior," cf. United States v. Grandmaison, 77 F.3d 555,

560-61 (1st Cir. 1996), and was caused at least in part by

diminished mental capacity, see U.S.S.G.  5K2.13, and physical and

emotional condition, see U.S.S.G.  5H1.3, 5H1.4.  Of course, the

refusal to grant a downward departure is not generally reviewable

on appeal, Grandmaison, 77 F.3d at 560; but an exception exists

where the district court misunderstands its own legal authority to

depart, id.

  We address only the guideline specifically permitting a

departure where "the defendant committed the offense while

suffering from a significantly reduced mental capacity."  U.S.S.G.

 5K2.13.  Aker contends that the district judge misunderstood the

legal standard because the judge said several times that he thought

that the departure was "discouraged" and certainly not

"encouraged."  When the prosecutor supported the defendant on this

point of vocabulary, the district judge ultimately declared that

the label did not matter because the guideline still called for a

particularized finding as to basis that the district court felt it

could not make.  

  The district court was right that in the colloquial sense

of the term, nothing in the diminished capacity guideline

"encourages" a departure for significant diminished capacity:  the

guideline merely says that in such a case, a departure "may be

warranted."  The confusion arises simply because this and other

appellate courts have described such departures as "encouraged" in

contrast to other possible grounds of departure that are

affirmatively forbidden (e.g., race) or "discouraged" in the sense

that they "ordinarily" are not bases for departure--exemplified by

the physical and emotional condition rubrics that Aker also sought

to invoke.  U.S.S.G.  5H1.3, 5H1.4.  If the sentencing transcript

stood alone, we might feel confident that by the end of the

colloquy, the labels played no part in the outcome.  

  However, the judgment ultimately entered by the district

judge--admirably containing a separate memorandum on sentencing--

perpetuates the confusion.  In the single paragraph directed

explicitly to Aker's request for a downward departure, the court

rejects aberrant behavior as a ground and then continues:

    I do find diminished physical capacity,

  5K2.13, and emotional condition, 5H1.3.  But I

  do not consider the proposed departure an

  encouraged departure.  Rather, it is a

  discouraged departure, and I am not able to

  find exceptional circumstances that would

  warrant departure. 



The statement is correct that physical and emotional condition are

discouraged grounds; but there is no mention of diminished mental

capacity (except for the citation to  5K2.13 which was probably a

typographical error) even though that was Aker's best and most

fully argued ground for a departure.  One is left with the

impression--reinforced to some extent by the transcript--that the

district court was conflating two discouraged grounds of departure

(physical and emotional condition) with a final, related ground

(diminished mental capacity) which--albeit not "encouraged" in the

colloquial sense--is not in any sense a "discouraged" ground of

departure.  

  The government, to its credit--and we commend the

prosecutor for his candor--also calls our attention to another

statement by the district judge that "even pressures resulting from

diminished capacity are not the equivalent of a total excuse for

moral agency.  He still had a choice and his choice was not 

totally forced upon him."  If this statement were read as requiring

that diminished mental capacity be the sole cause of defendant's

crime, it would conflict (as the government recognizes) with our

decision in United States v. Lauzon, 938 F.2d 326, 331 (1st Cir.),

cert. denied, 502 U.S. 972 (1991), which requires only that

defendant's significantly reduced mental capacity have "contributed

to some extent to the commission of the offense." 

  The district judge's just quoted remark was actually made

in the course of explaining why the judge would not grant a two-

level downward adjustment for acceptance of responsibility; the

district judge probably meant (quite correctly) that Aker was still

not accepting full responsibility for his crimes.  No one thought

enough of the statement to object to it at sentencing, and on

appeal Aker merely mentions the remark in passing.  Still, it is

hard to be completely sure that the distinction between sole cause

and contributing cause had no connection with the diminished

capacity issue, which was specifically mentioned.

  Realistically, we think it quite unlikely that the

district court's decision was affected by the label attached

("discouraged" versus "encouraged") or by any belief that

diminished capacity had to be the sole cause of the crime.  Aker's

main evidence in support of his diminished capacity claim was the

assessment that Dr. Ebert made five years later, which itself was

guarded and only favorable to the claim of diminished capacity;

and, in addition, the district court made clear that it regarded

the report as seriously undermined by lies that Aker continued to

serve up to Dr. Ebert, primarily designed to understate the length

and severity of his criminal career continuing long after his

wife's death. 

  Nevertheless, there is one fully valid objection (the use

on several occasions of the "discouraged" label for diminished

capacity departures), a slight although unpreserved concern as to

the causation test, and the conflation both in the transcript and

in the sentencing memorandum of the diminished capacity departure

with other less favored grounds of departure.  Since the

consequences are important and the district court can easily clear

up any uncertainty, we think that in the interests of justice, a

remand on this single issue is warranted.  If our clarifications do

not affect the outcome, the district judge is free to say so in a

single sentence. 

  Accordingly, the judgment of conviction is affirmed but

the sentence is vacated solely with respect to the request for a

possible departure on grounds of significantly diminished mental

capacity, and the case is remanded for further consideration of

that issue in light of this opinion, with or without further

proceedings as the district court may see fit and without prejudice

to reimposition of the same sentence.

  It is so ordered.