United States Court of Appeals For the First Circuit
No. 99-2380
UNITED STATES OF AMERICA,
Appellant,
v.
EUGENE EDWARD MARTIN,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Selya and Lipez, Circuit Judges,
and Casellas,* District Judge.
Dina Michael Chaitowitz, Assistant United States Attorney, with whom Donald K. Stern, United States Attorney, was on brief, for appellant. Thomas H. Souza, with whom Jeremy M. Carter and Carter & Associates were on brief, for appellee.
August 15, 2000 ________________ *Of the District of Puerto Rico, sitting by designation. SELYA, Circuit Judge. This appeal tests the boundaries
of the district court's authority to depart from the prescribed
guideline sentencing range (GSR). Concluding, as we do, that
the court roamed too far afield, we vacate the imposed sentence
and remand for resentencing.
I.
Background
The relevant facts are simple and straightforward. On
May 11, 1999, defendant-appellee Eugene Edward Martin pleaded
guilty to a charge of distributing 119.6 grams of cocaine base.
See 21 U.S.C. § 841. The district court convened the
disposition hearing on September 8, 1999. It applied the 1998
edition of the United States Sentencing Guidelines — a
determination with which no one quarrels, see United States v.
Harotunian, 920 F.2d 1040, 1041-42 (1st Cir. 1990) — and arrived
at a base offense level of thirty-two. See USSG §2D1.1(c)(4).
The court proceeded to adjust downward by three levels for
acceptance of responsibility. See id. §3E1.1. It then found
the "safety valve" to be applicable, see 18 U.S.C. § 3553(f);
USSG §§2D1.1(b)(6), 5C1.2, and effected a further two-level
reduction, see generally United States v. Ortiz-Santiago, 211
F.3d 146, 150-51 (1st Cir. 2000) (explaining operation of the
safety valve). These calculations yielded an adjusted offense
-3- level of twenty-seven, which, when combined with Martin's lack
of a prior criminal record, corresponded to a GSR of 70-87
months. See USSG Ch.5, Pt.A (sentencing table).
To this point, the district court's judgments were
impeccable. The court, however, did not stop there; it snubbed
the GSR and departed downward sua sponte to impose a 64-month
incarcerative term. The judge premised this departure on a
combination of two factors. First, he remarked "the absence of
[an active] Sentencing Commission."1 This circumstance, he
reasoned, was one that "no one had contemplated" and that
permitted him to depart "if I think it reasonable that had there
been a Commission the guidelines would in fact apply
differently." Judge Young then referred to a statistical
compilation that he had directed the chief probation officer to
prepare. These statistics purported to reflect all federal
sentences imposed in fiscal year 1997 on persons whose primary
offense was drug trafficking, regardless of the nature or amount
of the substances involved. In Judge Young's view, the data
"show[ed] that nationally the median months in prison out of
17,137 offenders sentenced was 57 months, and in the First
1 In fact, the Commission had no voting members from and after October 31, 1998, having lost its quorum earlier that year. This situation persisted until the Senate confirmed seven new Commissioners on November 10, 1999.
-4- Circuit the mean was 67.8 months, with a median of 50 months out
of 543 offenders." Accordingly, sentencing Martin within the
GSR would promote this disparity, whereas imposing a shorter
term of immurement would partially offset it (and was, in the
judge's opinion, "just and fair").
The government appeals this downward departure.
II.
Analysis
We review departure decisions for abuse of discretion.
See Koon v. United States, 518 U.S. 81, 96-100 (1996); United
States v. Brewster, 127 F.3d 22, 25 (1st Cir. 1997). Our
precedents contemplate a trifurcated approach. "First, we
determine as a theoretical matter whether the stated ground for
departure is permissible under the guidelines. If the ground is
theoretically appropriate, we next examine whether it finds
adequate factual support in the record. If so, we must probe
the degree of the departure in order to verify its
reasonableness." United States v. Dethlefs, 123 F.3d 39, 43-44
(1st Cir. 1997) (footnote and citations omitted). In this
instance, we need not go beyond the first facet of the Dethlefs
inquiry.
A
-5- Before proceeding to that point, however, we pause to
consider the defendant's contention that the government
forfeited the argument that it advances on appeal by failing to
raise it below. On the surface, this contention seems potent —
but the surrounding circumstances dissipate its force.
A sentencing court has an obligation to give reasonable
notice that it is contemplating a departure. See Burns v.
United States, 501 U.S. 129, 138-39 (1991). This obligation
applies not only to upward departures, as was the case in Burns,
but also to downward departures. See United States v.
Pankhurst, 118 F.3d 345, 357 (5th Cir. 1997). Here, the record
reveals that the sentencing court neglected to provide the
government with adequate notice of its contemplated downward
departure.
The defendant questions whether this is so, adverting
to a pretrial conference held on December 21, 1998, in which
Judge Young mentioned the dormancy of the Sentencing Commission,
expressed concern about the status of the guidelines, and told
the parties that he intended to obtain some sentencing data from
the chief probation officer. We reject the suggestion that
these comments constituted adequate notice of a contemplated
-6- In the first place, the judge's remarks were made
almost five months before the defendant changed his plea and
some nine months before the disposition hearing. The record
reveals no continuing dialogue during the interim. Moreover,
the presentence investigation report made no mention of this (or
any other) possible basis for departure. On these facts, we do
not think that the prosecutor reasonably could have been
expected to divine an intention to depart despite the court's
evident discomfiture with the Sentencing Commission's status.
The judge's ruminations at the pretrial conference — ruminations
that he himself described as "only academic" — may have
adumbrated, but certainly did not articulate, a coherent
rationale for departure.
If more were needed — and we doubt that it is — the
statistics upon which the judge rested the departure were not
furnished to the prosecution at any time prior to the
disposition hearing. This was too late: a sentencing court
must give fair warning not only of the rationale for a possible
departure but also of the facts that undergird it in the
particular instance. See United States v. Morris, 204 F.3d 776,
778 (7th Cir. 2000). Here, the court's introduction of a
substantial body of new data at the disposition hearing
contravened its obligation to afford the parties reasonable
-7- notice of what it envisioned as departure-justifying facts. See
id. Given this chronology of events, we are constrained to
conclude that the district court failed to comply with Burns.
Next, we turn to the question of remedy. In some
circumstances, the omission of a departure warning might
engender a remand for further proceedings. Here, however, such
a course would unduly prolong matters without any corresponding
gain. The government's objection to the departure is purely
legal in nature, the parties have fully briefed the merits, and
supplementary factfinding is not indicated. As long as fairness
concerns are not compromised, courts should try to be practical.
In the circumstances of this case, it makes sense to treat the
lower court's failure to give notice as excusing the
government's procedural default and rendering the departure
decision ripe for appellate review.2 Accord United States v.
Bartsma, 198 F.3d 1191, 1197-99 (10th Cir. 1999).
B
Having vaulted this procedural hurdle, we repair to the
first prong of the Dethlefs inquiry. A court may impose a
2 We hasten to add that the error of which the government complains is plain, and thus warrants correction whether or not preserved. See United States v. Mangone, 105 F.3d 29, 35 (1st Cir. 1997); see also United States v. Torres-Rosa, 209 F.3d 4, 8 (1st Cir. 2000) (confirming applicability of plain error doctrine in sentencing appeals).
-8- sentence outside the GSR 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 that should
result in a sentence different from that described." 18 U.S.C.
§ 3553(b). To determine whether a circumstance was adequately
considered by the Commission, the court must examine "the
sentencing guidelines, policy statements, and official
commentary of the Sentencing Commission." Id. These precepts
are embedded, virtually word for word, in the guidelines
themselves. See USSG §5K2.0.
The departure power is intended to ameliorate the
mechanistic rigidity of the guidelines and to import a modicum
of flexibility into the sentencing calculus. Thus, the
Commission, generally speaking, did "not intend to limit the
kinds of factors, whether or not mentioned anywhere in the
guidelines, that could constitute grounds for departure in an
unusual case." USSG Ch.1, Pt.A, intro. comment. (n.4(b)).
Given this overall philosophy, courts categorically reject
potential grounds for departure at their peril.
Most general rules admit of exceptions, however, and
there are several exceptions to the rule that a departure
theoretically can be grounded on any differentiating factor.
-9- Under these exceptions, sentencing courts are barred from basing
departures on forbidden factors, factors adequately considered
by the Commission, factors that lack relevance, and factors that
offend the framework and purpose of the guidelines.
The first of these exceptions refers to certain
enumerated factors that the Commission has placed beyond the
pale, e.g., race, sex, national origin, creed, religion, and
socioeconomic status. See USSG §5H1.10. Forbidden factors can
never serve as the basis for a departure. See Koon, 518 U.S. at
95-96; United States v. Perez, 160 F.3d 87, 89 (1st Cir. 1998).
The second exception flows directly from the statutory
requirement that only an "aggravating or mitigating circumstance
. . . not adequately considered by the [Commission]" can ground
a departure. 18 U.S.C. § 3553(b). The third exception, which
precludes the use of irrelevant factors, can be considered a
subset of the second. See, e.g., United States v. Clase-
Espinal, 115 F.3d 1054, 1059-60 (1st Cir. 1997) (holding that
acceding to deportation was a circumstance adequately considered
by the Commission and therefore irrelevant to the departure
calculus). The fourth exception, which proscribes the use of
considerations that are inconsistent with the structure and
theory of the guidelines, also bears a family resemblance to the
second exception. It is, after all, entirely plausible to
-10- conclude that the Commission "adequately" considers such factors
by disregarding them, and, indeed, the case law applies these
last three exceptions without much differentiation amongst them.
See, e.g., United States v. Snyder, 136 F.3d 65, 70 (1st Cir.
1998) (precluding departures based on federal/state sentencing
disparities); Dethlefs, 123 F.3d at 47 (stating that considering
an unconditional guilty plea as a factor supporting departure
"would intrude upon the Commission's prerogatives and undercut
the sentencing guidelines"); United States v. Wogan, 938 F.2d
1446, 1449 (1st Cir. 1991) (precluding downward departures based
on a perceived need to equalize sentencing disparities between
similarly situated codefendants); United States v. Aguilar-Pena,
887 F.2d 347, 350-53 (1st Cir. 1989) (precluding downward
departures based on incidence of crime in different locales).
In this case, the lower court predicated its downward
departure on the moribund status of the Sentencing Commission,
together with the perceived disparity between the defendant's
GSR and the national median sentence for persons convicted of
federal drug-trafficking offenses. Neither element, singularly
or in combination, can carry the weight of a downward departure.
The Sentencing Commission certainly did not anticipate
being without sufficient members to muster a quorum. See USSG
Ch.1, Pt.A, intro. comment. (n.4(b)) (explaining that "[t]he
-11- Commission is a permanent body"). But the Commission's lack of
a quorum, standing alone, is simply irrelevant to an individual
sentencing decision. Nothing about vacancies on the Commission
is inherently aggravating or mitigating for purposes of a
departure assessment. This circumstance therefore needs help to
clear the relevancy hurdle: there must be a solid, non-
speculative reason to believe that the guidelines would apply
differently had the Commission been at full strength. In the
case at bar, the court's adjuvant reason was itself invalid as
a matter of law. We explain briefly.
Under our jurisprudence, the fact that the national
median for a broadly stated offense type may be above or below
a particular defendant's GSR cannot be used to justify a
sentencing departure. See United States v. Rodriguez, 63 F.3d
1159, 1168 (1st Cir. 1995) ("Absent misapplication of the
Guidelines, the mere fact of disparity is of no consequence.");
see also United States v. Banuelos-Rodriguez, 215 F.3d 969, 973-
78 (9th Cir. 2000) (en banc) (holding that inter-district
sentencing disparities, arising from differing charging and
plea-bargaining practices, do not constitute a valid ground for
departure); Snyder, 136 F.3d at 70 (similar, in respect to
federal/state sentencing disparities); Wogan, 938 F.2d at 1449
(similar, in respect to sentencing disparities between similarly
-12- situated codefendants). Departures based on these kinds of
perceived inequities "would contradict hopelessly the
guidelines' structure and theory." Snyder, 136 F.3d at 70.
The district court's statistical foray aptly
illustrates the wisdom of this point. The base offense level
for drug trafficking varies from six (for, e.g., less than 250
grams of marijuana) to thirty-eight (for, e.g., 30,000 kilograms
of marijuana). See USSG §2D1.1(c). For defendants who are in
criminal history category I, an offense level of six translates
into a GSR of 0-6 months of imprisonment, whereas an offense
level of thirty-eight produces a GSR of 235-293 months. See
USSG Ch.5, Pt.A (sentencing table). This graduated sentencing
structure reflects the Commission's view that not all drug-
trafficking offenses are equivalent; some deserve much longer
sentences than others. To bring the illustration closer to
home, this structure strongly suggests that the Commission
intended an individual responsible for distributing 119.6 grams
of cocaine base — like Martin — to serve more time than the
average drug-trafficking offender. Using the median sentence
imposed as a lodestar for routine departures would effectively
overrule that considered judgment. Accordingly, this factor is
ineligible for inclusion in the departure calculus.
-13- Since it is clear that the district court would not
have departed absent reliance on this impermissible datum, we
could end the analysis here. Cf. Brewster, 127 F.3d at 30
(suggesting that departure based on combination of valid and
invalid grounds must be vacated when "the exclusion of the
invalid ground . . . undermine[s] the departure rationale
articulated by the sentencing court"). We continue, however,
because we think that identifying the deeper flaw in the
district court's approach may prove worthwhile for future cases.
The structure and purpose of the guidelines do not
permit departures based on counterfactual reasoning of the type
employed by the court below. Courts must deal with the
guidelines as they stand, without speculation about how the
Commission might (or might not) choose to modify them at some
future date.3 Just as statutes outlive the particular
legislators who enact them (whether or not the legislative body
is in session), so too the enforceability of the guidelines does
not depend on the continued functioning of the Commission. To
the contrary, sentencing guidelines, once promulgated, have the
3At the expense of carting coal to Newcastle, we note that there is not so much as a hint in the record that the Commission, had it been velivolant, would have reacted to the statistics cited by the district court by reducing the penalties for crack cocaine — or that, had the Commission done so, Congress would have let the revision become law.
-14- force of law, see 18 U.S.C. § 3553(b); USSG Ch.1, Pt.A, intro.
comment. (n.2), and that circumstance obtains even when the
Commission is empty. Thus, departures (up or down) based on the
inherently speculative possibility that the guidelines might
under other circumstances be modified are impermissible.
Martin offers a variation on this theme. He suggests
that the moribund status of the Sentencing Commission left a
vacuum and permitted the trial judge to fill it. We reject this
surmise.
In the pre-guidelines era, judges made sentencing
choices with few restrictions. But the adoption of the
guidelines reined in that largely unbridled discretion. From
that point forward, judges no longer were permitted to
substitute their personal brand of justice for the collective
wisdom of the Sentencing Commission. See United States v.
Jackson, 30 F.3d 199, 203 (1st Cir. 1994) (explaining that,
"absent specific circumstances independently justifying a
departure, a judge cannot sentence outside a properly computed
sentencing range merely because he believes that the guidelines
work too severe a sanction in a particular case"); United States
v. Norflett, 922 F.2d 50, 53 (1st Cir. 1990) (similar); Aguilar-
Pena, 887 F.2d at 353 (similar). The Commission's lack of a
quorum, without more, does not override this important
-15- principle. Consequently, a departure based on the district
court's substitution of its own judgment for that of the missing
Commissioners cannot stand.
There is one more leg to our journey. In a last-ditch
effort to salvage the sentence, Martin strives to convince us
that we should overlook any error because the degree of
departure was modest (he uses the phrase "de minimis"). We are
not persuaded. The first — and most basic — question in a
departure inquiry is whether the stated ground for departure is
permissible. See Dethlefs, 123 F.3d at 43. If the answer to
that question is in the negative — as it is here — the extent of
the departure is immaterial.
III.
Conclusion
We need go no further. Because it was a clear abuse
of discretion for the district court to depart downward on
account of Commission vacancies, unrefined summary statistics,
or a combination of the two, the judgment must be vacated.
The government's appeal is sustained, the sentence
appealed from is vacated, and the case is remanded for
resentencing in accordance with this opinion.
-16-