United States v. Brewster
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Opinion
USCA1 Opinion
UNITED STATES COURT OF APPEALS UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT FOR THE FIRST CIRCUIT
_________________________
No. 97-1448
UNITED STATES OF AMERICA,
Appellee,
v.
CHARLES E. BREWSTER,
Defendant, Appellant.
_________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Gene Carter, U.S. District Judge] ___________________
_________________________
Before
Selya, Boudin and Stahl,
Circuit Judges. ______________
_________________________
Henry W. Griffin, by appointment of the court, for __________________
appellant.
Margaret D. McGaughey, Assistant United States Attorney, ______________________
with whom Jay P. McCloskey, United States Attorney, and Donald E. ________________ _________
Clark, Assistant United States Attorney, were on brief, for _____
appellee.
_________________________
October 2, 1997
________________________
SELYA, Circuit Judge. In this sentencing appeal, SELYA, Circuit Judge. _____________
defendant-appellant Charles E. Brewster protests an upward
departure that the district court premised in large measure on
prior, uncharged criminal conduct a history of persistent and
vicious domestic violence dissimilar to the offenses of
conviction (being a felon in possession of a firearm and making
false statements in connection with the procurement of firearms).
We affirm the sentence.
I. HOW THE CHARGES AROSE I. HOW THE CHARGES AROSE
We distill the facts from the plea colloquy, the
undisputed portions of the presentence investigation report (PSI
Report), and the transcript of the disposition hearing. See ___
United States v. Talladino, 38 F.3d 1255, 1258 (1st Cir. 1994); _____________ _________
United States v. Dietz, 950 F.2d 50, 51 (1st Cir. 1991). _____________ _____
In August 1996, police officers responded to a report
of domestic violence at the abode shared by the appellant and his
wife in Livermore Falls, Maine. The officers observed Mrs.
Brewster's injuries, tried to calm the couple's three children
(ages 10, 11 and 16), took statements from both Mrs. Brewster and
her sister-in-law, and arrested the appellant. While being
transported to the county jail, Brewster spoke volubly about his
ardor for hunting and described the firearms (a 30-30 rifle and
16-gauge shotgun) that he owned and kept in his house. When a
routine criminal record check disclosed a prior felony conviction
for armed robbery, the police repaired to the house and, with
Mrs. Brewster's consent, seized the two weapons. Further
2
investigation revealed that the appellant had purchased two other
rifles without disclosing his status as a convicted felon.
Meanwhile, Mrs. Brewster obtained a state court "protection from
abuse" order, and state authorities released Brewster on bail,
conditioned upon his refraining from all contact with his wife.
The appellant promptly violated this restriction.
In September 1996, a federal grand jury returned an
indictment charging the appellant with one count of making false
statements on a firearm application form in violation of 18
U.S.C. 922(a)(6), 924(a)(2) (1994), and two counts of being a
felon in possession of a firearm in violation of 18 U.S.C.
922(g)(1), 924(a)(2) (1994). In due course, the appellant
pleaded guilty to all three counts.
II. HOW THE SENTENCE DERIVED II. HOW THE SENTENCE DERIVED
The district judge pondered several pieces of evidence
at the disposition hearing. Among these was a handwritten
statement appended to the PSI Report, in which the appellant
admitted to purchasing guns knowing that he was legally forbidden
from doing so. In a second handwritten statement, also appended
to the PSI Report, Mrs. Brewster chronicled 17 years of horrific
domestic abuse. She explained that sheer terror had forestalled
any contact with the authorities before August of 1996: she
feared not only for her life, but also for what might happen to
her children if she were slaughtered. Her fear of bodily harm
stemmed from her husband's repeated minations during years and
years of physical abuse. She described incidents in which the
3
appellant threw her on the floor and stomped on her cranium with
heavy work boots, banged her head against a counter, threw knives
at her, and at various times smothered, kicked, punched, bit, and
strangled her. In addition, she had been threatened "with every
kind of brutal death possible."1
The appellant made little effort to conceal his abusive
behavior. In recorded interviews with the state police, several
neighbors and friends described incidents involving physical
violence and vulgar language, and reported that they had heard
the appellant threaten to kill his wife on several occasions.
After making an upward adjustment for multiple weapons,
USSG 2K2.1(b)(1)(A), and a downward adjustment for acceptance of
responsibility, USSG 3E1.1, Judge Carter settled upon an offense
level (OL) of 18. He then assessed criminal history points for
an armed robbery conviction and a breaking and entering
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USCA1 Opinion
UNITED STATES COURT OF APPEALS UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT FOR THE FIRST CIRCUIT
_________________________
No. 97-1448
UNITED STATES OF AMERICA,
Appellee,
v.
CHARLES E. BREWSTER,
Defendant, Appellant.
_________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Gene Carter, U.S. District Judge] ___________________
_________________________
Before
Selya, Boudin and Stahl,
Circuit Judges. ______________
_________________________
Henry W. Griffin, by appointment of the court, for __________________
appellant.
Margaret D. McGaughey, Assistant United States Attorney, ______________________
with whom Jay P. McCloskey, United States Attorney, and Donald E. ________________ _________
Clark, Assistant United States Attorney, were on brief, for _____
appellee.
_________________________
October 2, 1997
________________________
SELYA, Circuit Judge. In this sentencing appeal, SELYA, Circuit Judge. _____________
defendant-appellant Charles E. Brewster protests an upward
departure that the district court premised in large measure on
prior, uncharged criminal conduct a history of persistent and
vicious domestic violence dissimilar to the offenses of
conviction (being a felon in possession of a firearm and making
false statements in connection with the procurement of firearms).
We affirm the sentence.
I. HOW THE CHARGES AROSE I. HOW THE CHARGES AROSE
We distill the facts from the plea colloquy, the
undisputed portions of the presentence investigation report (PSI
Report), and the transcript of the disposition hearing. See ___
United States v. Talladino, 38 F.3d 1255, 1258 (1st Cir. 1994); _____________ _________
United States v. Dietz, 950 F.2d 50, 51 (1st Cir. 1991). _____________ _____
In August 1996, police officers responded to a report
of domestic violence at the abode shared by the appellant and his
wife in Livermore Falls, Maine. The officers observed Mrs.
Brewster's injuries, tried to calm the couple's three children
(ages 10, 11 and 16), took statements from both Mrs. Brewster and
her sister-in-law, and arrested the appellant. While being
transported to the county jail, Brewster spoke volubly about his
ardor for hunting and described the firearms (a 30-30 rifle and
16-gauge shotgun) that he owned and kept in his house. When a
routine criminal record check disclosed a prior felony conviction
for armed robbery, the police repaired to the house and, with
Mrs. Brewster's consent, seized the two weapons. Further
2
investigation revealed that the appellant had purchased two other
rifles without disclosing his status as a convicted felon.
Meanwhile, Mrs. Brewster obtained a state court "protection from
abuse" order, and state authorities released Brewster on bail,
conditioned upon his refraining from all contact with his wife.
The appellant promptly violated this restriction.
In September 1996, a federal grand jury returned an
indictment charging the appellant with one count of making false
statements on a firearm application form in violation of 18
U.S.C. 922(a)(6), 924(a)(2) (1994), and two counts of being a
felon in possession of a firearm in violation of 18 U.S.C.
922(g)(1), 924(a)(2) (1994). In due course, the appellant
pleaded guilty to all three counts.
II. HOW THE SENTENCE DERIVED II. HOW THE SENTENCE DERIVED
The district judge pondered several pieces of evidence
at the disposition hearing. Among these was a handwritten
statement appended to the PSI Report, in which the appellant
admitted to purchasing guns knowing that he was legally forbidden
from doing so. In a second handwritten statement, also appended
to the PSI Report, Mrs. Brewster chronicled 17 years of horrific
domestic abuse. She explained that sheer terror had forestalled
any contact with the authorities before August of 1996: she
feared not only for her life, but also for what might happen to
her children if she were slaughtered. Her fear of bodily harm
stemmed from her husband's repeated minations during years and
years of physical abuse. She described incidents in which the
3
appellant threw her on the floor and stomped on her cranium with
heavy work boots, banged her head against a counter, threw knives
at her, and at various times smothered, kicked, punched, bit, and
strangled her. In addition, she had been threatened "with every
kind of brutal death possible."1
The appellant made little effort to conceal his abusive
behavior. In recorded interviews with the state police, several
neighbors and friends described incidents involving physical
violence and vulgar language, and reported that they had heard
the appellant threaten to kill his wife on several occasions.
After making an upward adjustment for multiple weapons,
USSG 2K2.1(b)(1)(A), and a downward adjustment for acceptance of
responsibility, USSG 3E1.1, Judge Carter settled upon an offense
level (OL) of 18. He then assessed criminal history points for
an armed robbery conviction and a breaking and entering
conviction but overlooked seven other convictions because of
their age or the unavailability of records. The resultant point
score placed Brewster in criminal history category (CHC) III.
____________________
1A brief excerpt illustrates the tone and tenor of the
statement:
[My husband] has tried to drowned [sic] me in
the pool and in the bath tub. On several
occasions I thought I was going to die before
he let me up. . . . He's told me he would
slice my throat while I slept. He has put
knifes [sic] against my throat and pressed
them into my neck, laughing while he did it.
He has sawed my kitchen set up with a power
saw because I cooked the `wrong thing' for
supper and tried to pull me outside to `cut
my hands off.' I hid in the woods for hours
that night, but had to go back for my son.
4
This matrix (OL 18; CHC III) yielded a guideline sentencing range
(GSR) of 33 to 41 months.
The government urged the court to depart upward on the
ground that Brewster's CHC underrepresented the gravity of his
past criminality and the corresponding risk of recidivism. The
appellant objected. The ensuing debate centered around USSG
4A1.3 (1995), pertinent portions of which are reproduced in the
Appendix. Judge Carter expressed concern about whether section
4A1.3's language and structure permitted a departure based on
spousal abuse, especially since that abuse which he considered
relevant but not similar to the offense of conviction had never
been adjudicated as criminal conduct. In the last analysis,
however, the judge opined that the case qualified for a departure
because of the 17-year history of unrelieved domestic violence
and the existence of seven prior convictions for serious crimes
that had not been counted in arriving at the CHC. The judge then
mentioned a third factor, declaring that the appellant's refusal
effectively to pursue an alcohol abuse program or to undertake
domestic abuse counseling "[a]dd[ed] to all of this in terms of
the unusual character of this case."
Turning to the matter of degree, the court determined
that the upward departure should be fashioned by simulating an
increase from CHC III to CHC V. The court stressed that a
sentence at the upper limit of the simulated GSR (51-63 months)
would produce a prison term of approximately five years, which,
when followed by the maximum available term of supervised release
5
(three years), would keep the appellant away from his wife until
their youngest child had reached age 18. At that time, the court
reasoned, Mrs. Brewster would no longer be "held hostage" in an
abusive situation by her concern for her children. The court
added that a sentence of that magnitude was "appropriate in
recognizing the serious nature of this prior criminal conduct as
related conduct to the offense conduct of possession of the
firearm."
When all was said and done, the court sentenced the
appellant to serve an incarcerative term of 63 months, followed
by a three-year term of supervised release (the conditions of
which, among other things, proscribed any contact or
communication with his wife absent written permission from the
court). This appeal followed.
III. THE STANDARD OF REVIEW III. THE STANDARD OF REVIEW
We review departures for abuse of discretion. See Koon ___ ____
v. United States, 116 S. Ct. 2035, 2046-47 (1996). In the ______________
process, we must determine three things: whether the articulated
ground for departure is conceptually appropriate, whether the
record provides sufficient factual support for a finding that the
ground exists, and whether the degree of departure is reasonable.
See United States v. Dethlefs, ___ F.3d ___, ___ (1st Cir. 1997) ___ _____________ ________
[No. 96-2071, slip op. at 10].
For organizational purposes, we compress the departure
inquiry in this case by examining the legal and factual
sufficiency of the departure grounds in tandem. Only then do we
6
inquire into the degree of departure.
IV. THE GROUNDS FOR DEPARTURE IV. THE GROUNDS FOR DEPARTURE
The court below departed because it determined that the
appellant's CHC significantly underrepresented his proclivity to
commit future crimes and the seriousness of his criminal past in
two ways: first, CHC III failed adequately to reflect the
gravity and duration of his vicious, assaultive interspousal
behavior; and second, CHC III failed adequately to reflect the
cumulative impact of seven prior convictions that yielded no
criminal history points. We discuss these factors seriatim. We ________
then discuss the court's allusion to the appellant's failure
effectively to pursue a treatment program for domestic violence
or alcohol abuse.
A. Domestic Abuse as a Ground for Departure. A. Domestic Abuse as a Ground for Departure. ________________________________________
The guideline that the district court invoked, USSG
4A1.3, permits a departure if reliable information indicates
that the CHC "significantly under-represents the seriousness of
the defendant's criminal history or the likelihood that the
defendant will commit further crimes." The guideline's text
relates that such information "may include, but is not limited ___________________
to" the type illustrated in a series of five vignettes. Id. __ ___
(emphasis supplied). The first four examples address charged or
adjudicated criminal conduct, and the fifth addresses conduct
which, although unadjudicated (and perhaps uncharged), is similar
to the offense of conviction.
7
In contrast to these examples, the court below
predicated the instant departure principally on Brewster's 17-
year history of unadjudicated, uncharged domestic abuse, which it
termed "the most appalling part of this man's record." Judge
Carter recognized that none of the illustrations contained in
section 4A1.3 applied to this misconduct, as the appellant had
never been charged with, or convicted of, abusive behavior, and
this prior misconduct bore no similarity to the offenses of
conviction. But the judge looked to the guideline's introductory
language and concluded that Brewster's pervasive domestic abuse
"amply demonstrated" the likelihood that he will commit future
crimes. Brewster attacks this finding on three fronts. He
maintains that the domestic abuse, in and of itself, is not a
legally permissible ground for departure under section 4A1.3;
that it is not a relevant consideration here; and that, in all
events, the evidence of domestic violence relied upon by the
sentencing court possessed too few hallmarks of trustworthiness.
None of these arguments is convincing.2
1. 1.
____________________
2Given the sentencing court's factual findings, we are
inclined to believe that there is force behind the government's
argument that the prolonged domestic violence which marred the
Brewsters' marriage would have allowed the court to depart upward
under USSG 5K2.0 (permitting departure if the court finds an
aggravating circumstance of a kind, or to a degree, not
adequately taken into consideration by the sentencing guidelines
that renders the case meaningfully atypical). See, e.g., United ___ ____ ______
States v. Keester, 70 F.3d 1026, 1027-28 (8th Cir. 1995) (per ______ _______
curiam) (upholding such a departure). Because we sustain the
upward departure under section 4A1.3, see text infra, we need not ___ _____
resolve this question definitively.
8
Emphasizing the Sentencing Commission's express
invitation to consider "prior similar adult criminal conduct not _______
resulting in a criminal conviction," USSG 4A1.3(e) (emphasis
supplied), the appellant posits that the guideline by negative
implication forbids the use of dissimilar, uncharged conduct as a
basis for departure. We do not agree.
In our judgment, the determination of whether prior
criminal conduct that is both uncharged and dissimilar can ever
form a basis for a criminal history departure is neither dictated
nor informed by the language of section 4A1.3(e). After all,
that section states explicitly that the list of five
illustrations is not intended to be exhaustive. What is more, to
infer that the guideline's explicit authorization to consider
similar misconduct as a basis for departure precludes any
consideration of dissimilar misconduct for that purpose not only
would frustrate the "included, but not limited to" caveat that
the Sentencing Commission deliberately inserted in the text of
section 4A1.3, but also would run counter to a fundamental
principle of departure jurisprudence: that, in the absence of an
explicit proscription, courts generally should not reject
categorically any factor as a potential departure predicate. See ___
Koon, 116 S. Ct. at 2051; Dethlefs, ___ F.3d at ___ [slip op. at ____ ________
16]; see also USSG Ch.1, Pt. A., intro. comment. 4(b) (stating ___ ____
that the Sentencing Commission did not intend "to limit the kinds
of factors, whether or not mentioned anywhere else in the
guidelines, that could constitute grounds for departure in an
9
unusual case"). Finally, construing section 4A1.3 to mean what
it says comports with the Commission's emphasis on a case-by-case
approach to section 4A1.3 departures, see USSG 4A1.3, comment. ___
(backg'd.) ("This policy statement recognizes that the criminal
history score is unlikely to take into account all the variations
in the seriousness of criminal history that may occur.").
For these reasons, we rebuffed a kindred argument in
United States v. Doe, 18 F.3d 41 (1st Cir. 1994). The defendant _____________ ___
there, convicted of being a felon in possession of a firearm,
focused on statements in the commentary to USSG 4A1.2 that open
the door for sentencing courts to use outdated juvenile crimes
similar to the offense of conviction as a departure predicate.
See id. at 45-46. Drawing a negative inference from that ___ ___
language, Doe argued that the court could not use his uncounted,
outdated, dissimilar juvenile crimes as a springboard for __________
departure. See id. We rejected this argument, noting both that ___ ___
it contravened the Sentencing Commission's express intention not
to limit gratuitously the kinds of factors that could constitute
grounds for departure in a sufficiently atypical case, and that
the guideline commentary provided no explicit instruction as to
the use of uncounted dissimilar juvenile misconduct. See id. at ___ ___
46.
Both observations are apropos here. Moreover, the
fundamental lesson to be derived from Doe is "that a court should ___
not infer from inexplicit Guidelines language, or from language
that authorizes use of a particular factor as a basis for
10
departure in some cases, an absolute barrier in principle against ____ ________
using certain other factors as grounds for departure in other _____
unusual circumstances." Id. at 47. We find that lesson to be _______ ___
instructive in the circumstances at hand.
Considerations of consistency also conduce to following
Doe's lead. The guidelines, while not specifically addressing ___
the use of uncharged, dissimilar conduct as a factor in section
4A1.3 departures, explicitly provide that the touchstone of any
such departure determination is "that the criminal history
category does not adequately reflect the seriousness of the
defendant's past criminal conduct or the likelihood that the
defendant will commit other crimes." USSG 4A1.3, p.s. Because
the initial CHC determination appraises a defendant's history of
deviant behavior without regard to whether his past crimes are
similar in nature to the offense of conviction, we see no reason
to insist that courts take an artificially narrow view and assess
the CHC's adequacy through a lens that filters out prior
misconduct which is dissimilar in nature to the offense of
conviction, as long as that conduct, alone or in combination with
other known data, involves or portends serious criminal behavior.
On this issue, all roads lead to Rome. Accordingly, we
hold that, in an appropriate case, a criminal history departure
can be based upon prior dissimilar conduct that was neither
charged nor the subject of a conviction.3 In so holding, we
____________________
3To be sure, we should approach "dissimilar conduct"
departures, like all other departures, with great circumspection.
Our holding will have force only in instances in which the
11
align ourselves with the Seventh Circuit, see United States v. ___ ______________
Schweihs, 971 F.2d 1302, 1319 (7th Cir. 1992), and note our ________
respectful disagreement with the Second Circuit, see United ___ ______
States v. Chunza-Plazas, 45 F.3d 51, 56 (2d Cir. 1995) (vacating ______ _____________
an upward departure based on dissimilar criminal conduct that had
not resulted in conviction and holding that "a court might
properly consider that conduct [under section 4A1.3(e)] only if
it is `similar' to the crime of conviction").
2. 2.
The appellant contends, in the alternative, that the
imposed sentence must be vacated because the court rested its
appraisal of his past sociopathy upon information that lacked
trustworthiness and did not credibly show that the conduct was
meaningfully atypical. This contention is without merit.
We begin with bedrock. Traditional rules of evidence
do not pertain in the sentencing phase, see United States v. ___ ______________
Gonzalez-Vazquez, 34 F.3d 19, 25 (1st Cir. 1994), and trial ________________
courts exercise wide discretion in deciding what information is
sufficiently dependable to rely upon, see United States v. ___ ______________
Tardiff, 969 F.2d 1283, 1287 (1st Cir. 1992). Despite this _______
____________________
uncharged, dissimilar conduct is so serious that, unless it is
factored into the sentencing calculus, the resultant CHC will be
manifestly deficient as a measure of the defendant's past
criminality and/or likely recidivism. Moreover, we anticipate
that we will encounter relatively few defendants who have
substantial records of serious, dissimilar criminal conduct that
has never been brought to contemporaneous official attention.
Indeed, such cases may be limited to those types of misconduct,
such as domestic abuse, in which the very nature of the criminal
behavior itself explains the absence of previous charges and
convictions.
12
latitude, the information upon which a sentencing determination
is based must possess "sufficient indicia of reliability to
support its probable accuracy." USSG 6A1.3, p.s.
Reliability is a flexible, case-specific standard in
the sentencing context, but it always is informed by
considerations of due process and experiential knowledge. See ___
United States v. Lanterman, 76 F.3d 158, 160-161 (7th Cir. 1996); _____________ _________
Tardiff, 969 F.2d at 1287. Within those wide parameters, _______
sentencing courts may elect to embrace divers kinds of
information, even hearsay evidence that has never been subjected
to cross-examination. See Tardiff, 969 F.2d at 1287; United ___ _______ ______
States v. Zuleta-Alvarez, 922 F.2d 33, 36 (1st Cir. 1990). ______ ______________
Moreover, factual averments contained in the PSI Report usually
are deemed reliable enough to be used for sentencing purposes.
See Gonzalez-Vazquez, 34 F.3d at 25; United States v. Morillo, 8 ___ ________________ _____________ _______
F.3d 864, 872 (1st Cir. 1993) (collecting cases).
Here, the sentencing court relied on Mrs. Brewster's
notarized statement as the principal basis for its findings anent
the history of domestic abuse. In our view, the judge's
determination that this statement accurately portrayed the
salient events is unimpugnable. We explain briefly.
In the first place, Mrs. Brewster's statement was
authored subject to the penalties of perjury. In the second
place, the appellant virtually conceded the statement's accuracy
13
below,4 and failed to dispute the statement's contents in the
face of the district judge's explicit warning that, if accepted
as true, the statement would form part of the foundation upon
which the judge would decide what sentence should be levied.
Although the government must carry the devoir of persuasion in
regard to facts supporting an upward departure and the accused
has no obligation to offer oppugnant evidence, Brewster's refusal
to disavow the government's accusations when given the
opportunity to do so can itself be viewed as an indicium of the
proffered information's trustworthiness. See United States v. ___ ______________
Figaro, 935 F.2d 4, 8 (1st Cir. 1991). This inference is ______
especially compelling where, as here, the defendant also declines
the court's invitation to cross-examine the declarant at the
disposition hearing. See United States v. Shrader, 56 F.3d 288, ___ ______________ _______
295 (1st Cir. 1995).
Finally, a number of the allegations contained in Mrs.
Brewster's statement were corroborated by other information, such
as the PSI Report's description of the domestic violence incident
from which the federal charges arose, the original police report,
the state police interview transcripts, and the issuance of the
____________________
4The following colloquy occurred during the disposition
hearing:
THE COURT: Is there any respect in which you _________
believe that anything contained in the [PSI]
report or its appendices [i.e., Mrs.
Brewster's statement] as I have just
described them which [sic] is inaccurate or
untrue?
DEFENDANT: No, sir. _________
14
state court protection order. Such independent corroboration is
a prime indicator of reliability in the sentencing milieu. See ___
United States v. Ponce, 51 F.3d 820, 828 (9th Cir. 1995). _____________ _____
We need not tarry. On this record, it strains
credulity to characterize Mrs. Brewster's account as unreliable.5
Hence, the district court did not err in accepting and acting
upon the information contained in the statement. See, e.g., ___ ____
Shrader, 56 F.3d at 294; Tardiff, 969 F.2d at 1287; Figaro, 935 _______ _______ ______
F.2d at 7.
Before leaving the topic of factual sufficiency, we
pause to discuss two related points. One concerns the question
of relevancy. The appellant hints that, even if the record
reliably reflects a pattern of domestic abuse, that pattern is
not a fair predictor of future criminality along the lines of the
offense of conviction. This suggestion, however, is no more than
a recasting of the argument that prior dissimilar conduct cannot __________
form the fundament for a section 4A1.3 departure, and we dismiss
it on that basis. Section 4A1.3 permits a departure as long as
the uncounted conduct evidences a general propensity to commit
"other" or "further" crimes. Brewster's pervasive history of
____________________
5Brewster's reliability argument leans heavily on our
opinion in United States v. McMinn, 103 F.3d 216 (1st Cir. 1997). _____________ ______
McMinn, fairly read, will not bear the weight that Brewster loads ______
upon it. In that case, we rejected a reliability challenge and
upheld a section 4A1.3 departure based in part on witness
statements attesting to the seriousness of the defendant's prior
criminal conduct. See id. at 218. Brewster's argument suggests ___ ___
that, were it not for certain differences between the McMinn ______
statements and those in issue here, the McMinn court would have ______
disallowed the upward departure. This is unfounded conjecture,
premised primarily on wishful thinking.
15
domestic violence undoubtedly presages the probability that he
will continue to engage in such offensive behavior.
We add, moreover, that there is indeed a nexus in this
case between Brewster's history of spousal abuse and his felon-
in-possession offense. As Judge Carter pointed out, the
discovery of the offense conduct arose directly from an incident
of domestic violence, and, although the record contains no
inkling that Brewster used the guns to menace his wife, we cannot
fault the district judge's conclusion that the presence of guns
in the home was "a reasonable source of sufficient fear" to
discourage Mrs. Brewster from seeking outside assistance in an
effort to end the unremitting abuse.
Finally, we must ask whether the appellant's immersion
in domestic violence was sufficiently striking to distinguish him
from the mine-run of offenders in CHC III, thereby warranting an
upward departure. See United States v. Carrillo-Alvarez, 3 F.3d ___ _____________ ________________
316, 320 (9th Cir. 1993). The district court described the
thoroughly despicable chronicle of physical, verbal, and
emotional abuse as "highly unusual." We believe that the
accuracy of that characterization is self-evident and that the
atypicality requirement of section 4A1.3 is easily fulfilled.
Phrased another way, since the appellant's placement in CHC III
did not compensate at all for this markedly atypical 17-year
history of grievous misconduct, an upward departure under section
4A1.3 was warranted.
B. Prior Uncounted Convictions. B. Prior Uncounted Convictions. ___________________________
16
The appellant also contests the second pillar
underpinning the upward departure: the district court's reliance
on the seven prior convictions that were excluded from the CHC
calculation. Because the court did not rest its departure
analysis on the pattern of protracted domestic violence alone,
but on the combined effect of that pattern and the litany of
uncounted convictions, we must address this assignment of error.
Section 4A1.3 specifically authorizes courts to
consider prior uncounted convictions, see USSG 4A1.3(a), and an ___
upward departure is appropriate if convictions that were excluded
from the CHC calculation for reasons such as remoteness "evince
some significantly unusual penchant for serious criminality."
United States v. Aymelek, 926 F.2d 64, 73 (1st Cir. 1991). _____________ _______
Here, the uncounted convictions involved a 1977 assault
with a dangerous weapon; a 1979 conviction for operating a motor
vehicle so as to endanger; four convictions in 1980 (two separate
larcenies, an episode of larceny by check, and an incident that
involved breaking and entering into a motor vehicle); and a 1992
conviction for operating an unregistered, uninsured, and
uninspected motor vehicle. Judge Carter's assessment that the
seven convictions for the most part represented serious offenses
cannot be gainsaid, and, when considered against the backdrop of
the appellant's protracted history of spousal abuse, such
convictions are "sufficient to remove the offender from the mine-
run of other offenders." Id. Under these circumstances, a ___
departure is appropriate. See id. ___ ___
17
Swimming upstream against this reality, the appellant
asseverates that the age of these convictions dispels any notion
that they indicate an increased likelihood of recidivism. This
asseveration lacks force. To be sure, the appellant committed
the uncounted offenses between 17 and 20 years ago.6 But, when
considered in conjunction with the counted offenses and the 17-
year history of domestic abuse, they form discernible links in a
long chain of persistent misconduct. Given this solid basis for
a powerful inference of recidivism and for a finding that the
string of uncounted convictions reflect a rather unusual
proclivity for serious criminality, we detect no abuse of
discretion in the lower court's reliance on the uncounted
convictions. See United States v. Pratt, 73 F.3d 450, 453 (1st ___ _____________ _____
Cir. 1996) (ratifying decision to depart upward based, inter
alia, on outdated, uncounted convictions for "serious dissimilar
[mis]conduct"); United States v. Tilley, 964 F.2d 66, 74-76 (1st _____________ ______
Cir. 1992) (similar); Aymelek, 926 F.2d at 73 (holding that a _______
sentencing court properly relied on seven outdated convictions
"distinguished by their numerosity and dangerousness" in
considering an upward departure); see also Doe, 18 F.3d at 45 ___ ____ ___
(holding that uncounted convictions for dissimilar misconduct,
remote in time, can form the basis for an upward departure).
____________________
6The parties, like the sentencing court, focus their
attention on the six convictions that were excluded from the CHC
computation on temporally-related grounds. We follow their lead
and omit any separate discussion of the excluded 1992 conviction
(which, in the overall scheme of things, appears to carry little
weight).
18
C. Refusal to Seek Treatment. C. Refusal to Seek Treatment. _________________________
In pronouncing sentence, the district court mentioned
the appellant's failure to pursue counseling for alcohol abuse
and domestic violence. The appellant claims that the court
erroneously employed this finding as a third factor justifying
the sentence, and contests it both as a matter of law (he asserts
that refusal to seek treatment cannot form the basis for a
departure) and as a matter of fact (he asserts that he had begun
treatment before his arrest).
Speaking broadly, the absence of a mitigating factor
ordinarily cannot be treated as the presence of an aggravating
factor, and, therefore, it might arguably be error to premise an
upward departure on a finding, simpliciter, that a defendant
refused to seek voluntary treatment.7 We decline to pursue the
point for two reasons. First, the record in this case, read as a
whole, casts doubt upon the appellant's claim that the court used
this finding as an independent basis for departing. Rather, the
____________________
7This situation is unlike United States v. Shrader, 56 F.3d ______________ _______
288 (1st Cir. 1995), a case in which the defendant unsuccessfully
challenged a criminal history departure granted on the basis that
his CHC significantly understated both his criminal history and
his proclivity for recidivist behavior. We noted, inter alia,
four incidents, not included in the CHC computation, during which
Shrader operated a motor vehicle while under the influence of
alcohol, and we further noted that the CHC "did not account for
the fact that Shrader had thrice been ordered to undergo
rehabilitation programs designed to deter the very behavior
underlying these incidents." Id. at 293. We held that this ___
"record of persistently disregarding the law" rendered the case
sufficiently unusual to warrant an upward departure. However, it
was not Shrader's failure to seek treatment, but his flagrant
disregard of judicial directives, that helped to establish his
recidivist tendencies.
19
sentencing transcript suggests that the court considered the
defendant's failure to seek help primarily as evidence that
Brewster had "every prospect of continuing [the violent domestic
abuse] in the future" and of continuing to "indulg[e] in a
dangerous and highly reprehensible . . . course of conduct."
Second, to the extent if at all that the court
blended this finding into the departure mix, any error would be
harmless. When a departure rests on a combination of valid and
invalid grounds, a reviewing court should uphold it as long as
(1) the extent of departure is reasonable in relation to the
valid grounds, (2) the exclusion of the invalid ground does not
undermine the departure rationale articulated by the sentencing
court, and (3) whole-record review offers an assurance that
excision of the invalid ground probably would not have altered
the sentence imposed. See United States v. Diaz-Bastardo, 929 ___ ______________ _____________
F.2d 798, 800 (1st Cir. 1991); see also Figaro, 935 F.2d at 7. ___ ____ ______
In this instance, it is readily apparent that the
district court's decision to depart depended primarily on the
appellant's prolonged campaign of domestic violence and
secondarily on the uncounted convictions. It is equally apparent
that those grounds, standing alone, are fully adequate to support
the departure. What the court perceived to be the appellant's
refusal to seek treatment was at most a throw-in a lagniappe
that in all likelihood did not sway, or even affect, the decision
to depart. Hence, we rule that the district court's superfluous
"refusal to treat" comments, whether or not intended as an
20
additional ground for departure, do not undermine the sentence.
V. THE REASONABLENESS OF THE DEPARTURE V. THE REASONABLENESS OF THE DEPARTURE
Having determined that the stated grounds are legally
and factually sufficient to support the sentencing court's
decision to depart, our final task is to assay the degree of
departure. The yardstick is reasonableness. See United States ___ _____________
v. Quinones, 26 F.3d 213, 219 (1st Cir. 1994); United States v. ________ _____________
Diaz-Villafane, 874 F.2d 43, 49 (1st Cir. 1989); see also 18 ______________ ___ ____
U.S.C. 3742(e)(3) (1994). This criterion requires us to
consider not only the trial court's reasons for departing, see 18 ___
U.S.C. 3742(e)(3)(B), but also "the overall aggregate of known
circumstances pertaining to the offense of conviction and to the
offender who committed it," United States v. Ocasio, 914 F.2d _____________ ______
330, 337 (1st Cir. 1990). Furthermore, we must determine whether
a sentencing court that purports to undertake a so-called
horizontal departure,8 such as a criminal history departure under
section 4A1.3, has fulfilled its guideline-imposed obligation to
evaluate adjacent criminal history categories in sequence. See, ___
e.g., Pratt, 73 F.3d at 453 (concluding that a court seeking to ____ _____
depart pursuant to section 4A1.3 must determine that the
____________________
8Departures pursuant to USSG 4A1.3 are considered
horizontal because, in selecting an adequate criminal history
category, "the court moves horizontally across the sentencing
table through successively higher CHCs until it reaches an
appropriate, or `reflective' sentencing range." United States v. _____________
Hardy, 99 F.3d 1242, 1248 (1st Cir. 1996). By contrast, USSG _____
5K2.0 authorizes a court to depart by moving along the vertical
axis of the sentencing table and selecting an offense level that
reflects the impact of the aggravating (or mitigating)
circumstance which makes the offense of conviction unusual. See ___
id. ___
21
offender's criminal history is similar to the criminal histories
of defendants in the CHC to which the court wishes to migrate);
Aymelek, 926 F.2d at 70 (explaining that "section 4A1.3 _______
departures require the use of analogies by, in effect, moving
from one criminal history category to another"); see also United ___ ____ ______
States v. Tropiano, 50 F.3d 157, 162 (2d Cir. 1995) (holding ______ ________
that, under section 4A1.3, a court is required to "proceed[]
sequentially from the criminal history category determined by the
defendant's criminal history point score through each higher
criminal history category until it settles upon a category that
fits the defendant"). Because a sentencing court has first-hand
exposure to the accused and a more intimate knowledge of the
circumstances upon which the decision to depart is premised,
appellate courts should disturb determinations implicating
degrees of departure only if it clearly appears that the
sentencing court abused its considerable discretion. See Diaz- ___ _____
Villafane, 874 F.2d at 49-50. _________
In this instance, the court leapfrogged over CHC IV and
departed from CHC III to CHC V, thereby upgrading the GSR from a
maximum of 41 months to a maximum of 63 months. It then imposed
a 63-month sentence. The court reasoned that this incarcerative
term, followed by three years of supervised release, would
accomplish two things: it would ensure judicial supervision of
the appellant's activities until his youngest son was old enough
to leave home, and it would appropriately reflect both the
seriousness of the appellant's criminality and the concomitant
22
risk of recidivism. We find nothing unacceptable in the extent
of the departure.
At the threshold, we dismiss out of hand the
appellant's suggestion that the district court failed adequately
to explain its reasons for selecting a departure of this
magnitude. The requirement that courts departing horizontally
must look to adjacent criminal history categories in sequence is
important, but it is not to be construed in a robotic manner.
See Aymelek, 926 F.2d at 70. Here, though the court did not ___ _______
explicitly discuss the inadequacy of CHC IV, it made the
rationale for its choice of CHC V transparently clear. Moreover,
the court's explanation of why a sentence available under CHC V
satisfied its concerns particularly its concern about Mrs.
Brewster's welfare in relation to the childrens' ages served de
facto as an explanation of why CHC IV would not suffice.
Accordingly, the explanation substantially complies with the
requirement contained in section 4A1.3.
The appellant's related claim that the extent of
departure is draconian deserves scant comment. The court
departed upward by 22 months to a point approximately 50% above
the maximum allowed under the original GSR. We are mindful that
sentencing courts have substantial leeway regarding degrees of
departure. See United States v. Rivera, 994 F.2d 942, 950 (1st ___ _____________ ______
Cir. 1993); Aymelek, 926 F.2d at 69 (citing United States v. _______ ______________
Aguilar-Pena, 887 F.2d 347, 350 (1st Cir. 1989)); Diaz-Villafane, ____________ ______________
874 F.2d at 52. Although the extent of the departure in the
23
instant case is substantial, we believe that the departure-
justifying circumstances and the extent of the departure are in
reasonable balance. No more is exigible. See United States v. ___ _____________
Harotunian, 920 F.2d 1040, 1045-46 (1st Cir. 1990); see also __________ ___ ____
United States v. Hardy, 99 F.3d 1242, 1253 (1st Cir. 1996) ______________ _____
(affirming upward departure of 300% based in part on defendant's
"persistent ten-year history of violent anti-social behavior").
VI. CONCLUSION VI. CONCLUSION
We need go no further. We hold that USSG 4A1.3
provided legal authority for the court to depart for uncharged
dissimilar misconduct (here, an ingrained pattern of domestic
violence) of a kind that evinced both the defendant's significant
likelihood of recidivism and the seriousness of his criminal
past. We also hold that, in the unique circumstances of this
case, the long and documented history of spousal abuse, combined
with a plethora of uncounted prior convictions, amply justified
an upward departure of the magnitude essayed by the sentencing
court.
Affirmed. Affirmed. ________
24
APPENDIX APPENDIX ________
If reliable information indicates that the criminal
history category does not adequately reflect the
seriousness of the defendant's past criminal conduct or
the likelihood that the defendant will commit other
crimes, the court may consider imposing a sentence
departing from the otherwise applicable guideline
range. Such information may include, but is not
limited to, information concerning:
(a) prior sentence(s) not used in computing the
criminal history category (e.g., sentences for ____
foreign and tribal offenses);
(b) prior sentence(s) of substantially more than
one year imposed as a result of independent crimes
committed on different occasions;
(c) prior similar misconduct established by a
civil adjudication or by a failure to comply with
an administrative order;
(d) whether the defendant was pending trial or
sentencing on another charge at the time of the
instant offense;
(e) prior similar adult criminal conduct not
resulting in a criminal conviction.
A departure under this provision is warranted when the
criminal history category significantly under-
represents the seriousness of the defendant's criminal
history or the likelihood that the defendant will
commit further crimes. . . . The court may, after a
review of all the relevant information, conclude that
the defendant's criminal history was significantly more
serious than that of most defendants in the same
criminal history category, and therefore consider an
upward departure from the guidelines. However, a prior
arrest record itself shall not be considered under
4A1.3.
USSG 4A1.3 (1995).
25
Related
Koon v. United States
518 U.S. 81 (Supreme Court, 1996)
United States v. Doe
18 F.3d 41 (First Circuit, 1994)
United States v. Gonzalez Vazquez
34 F.3d 19 (First Circuit, 1994)
United States v. Talladino
38 F.3d 1255 (First Circuit, 1994)
United States v. Shrader
56 F.3d 288 (First Circuit, 1995)
United States v. Pratt
73 F.3d 450 (First Circuit, 1996)
United States v. Hardy
99 F.3d 1242 (First Circuit, 1996)
United States v. McMinn
103 F.3d 216 (First Circuit, 1997)
United States v. Wilfredo Diaz-Villafane
874 F.2d 43 (First Circuit, 1989)
United States v. Jorge Armando Aguilar-Pena
887 F.2d 347 (First Circuit, 1989)
United States v. Dennis Harotunian
920 F.2d 1040 (First Circuit, 1990)
United States v. Kaya Aymelek
926 F.2d 64 (First Circuit, 1991)
United States v. Porfirio Johnson Figaro
935 F.2d 4 (First Circuit, 1991)
United States v. William A. Dietz
950 F.2d 50 (First Circuit, 1991)
United States v. Ronald E. Tilley
964 F.2d 66 (First Circuit, 1992)
United States v. Claude Paul Tardiff
969 F.2d 1283 (First Circuit, 1992)
United States v. Frank John Schweihs, United States of America v. Anthony F. Daddino
971 F.2d 1302 (Seventh Circuit, 1992)
United States v. Mirna Rivera, United States v. Robert Adamo
994 F.2d 942 (First Circuit, 1993)
United States v. Jesus M. Quinones, A/K/A Jesus M. Quinones-Rodriguez
26 F.3d 213 (First Circuit, 1994)
United States v. Pedro Fernando Chunza-Plazas
45 F.3d 51 (Second Circuit, 1995)
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