United States v. DeGrandis

Opinion

USCA1 Opinion

October 26, 1995      [Not for Publication]
                                [Not for Publication]



                            United States Court of Appeals
                            United States Court of Appeals

                                For the First Circuit
                                For the First Circuit

                                _____________________



          No. 94-2136

                                    UNITED STATES,



                                      Appellee,



                                          v.



                                   JOHN DEGRANDIS,



                                Defendant, Appellant.



                               _____________________  


APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF MASSACHUSETTS



                     [Hon. Joseph L. Tauro, U.S. District Judge]
                                            ___________________



                                _____________________


Before



                           Selya and Stahl, Circuit Judges,
                                            _______________



                            and Gorton*,  District Judge.
                                          _______________



                                _____________________


John C. Doherty for appellant.
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               Jeanne M. Kempthorne, Assistant United States Attorney, with
               ____________________

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

                                _____________________


_____________________


____________________



          *Of the District of Massachusetts, sitting by designation.



Per  Curiam.   In September  of 1994,  the district
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            court  sentenced  John DeGrandis  to  a  prison  term of  151



            months1  and three  years of  supervised release  for a  bank



            robbery he committed in January 1992.  DeGrandis now  appeals



            his sentence, challenging the district court's ruling that it



            lacked authority  under the  Sentencing Guidelines  to depart



            downward from  the prescribed  sentencing range based  on his



            lack of youthful guidance.2



                      Under  the  Guidelines in  effect  at  the time  of



            sentencing, see U.S.S.G.   1B1.11(a), "lack  of guidance as a
                        ___



            youth  and similar  circumstances indicating  a disadvantaged



            upbringing"  were forbidden  grounds for  downward departure.



            U.S.S.G.    5H1.12.     (added  by  amendment,   Nov.  1992).



                                
            ____________________



            1.  DeGrandis pled guilty without a plea agreement.  Applying

            the  Guidelines  in  force at  the  time  of sentencing,  the

            district  court sentenced  DeGrandis  to the  minimum of  the

            Guideline  range based on an adjusted offense level of 29 and

            a criminal  history category  of VI,  pursuant to the  career

            offender  provisions  of  U.S.S.G.    4B1.1.     Pursuant  to

            U.S.S.G.    3E1.1(b), the  court granted  DeGrandis a  three-

            level reduction for acceptance of responsibility. 



            2.  At   his  sentencing  hearing,   DeGrandis  advanced  his

            childhood physical  abuse as a factor  supporting a departure

            for  lack of youthful guidance.  Now, in his appellate brief,

            he seems to suggest that childhood abuse is a separate ground

            for departure, distinct  from lack of youthful guidance.  But

            he  does not make that clear, he makes no separate arguments,

            and  he  points  to  no precedent  treating  childhood  abuse

            separately.   We,  therefore,  consider  childhood  abuse  as

            subsumed in his lack  of youthful guidance arguments, but  we

            would reach the  same result if we  considered it separately.

            See  United States  v. Zannino,  895 F.2d  1, 17  (1st Cir.),
            ___  _____________     _______

            cert.  denied   494  U.S.  1082  (1980)   (claims  raised  in
            _____  ______

            conclusory fashion, unsupported  by developed  argumentation,

            are deemed waived).



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DeGrandis   argues,   however,  that     5H1.12   effected  a



            substantive  change  to  the  Guidelines  subsequent  to  his



            offense, and therefore its application to him was a violation



            of the Ex Post Facto Clause of the Constitution.   See United
                                                               ___ ______



            States v. Clark, 8 F.3d 839, 844-45 (D.C. Cir. 1993) (holding
            ______    _____



            that  the  addition  of    5H1.12 was  a  substantive  change



            implicating Ex  Post Facto  Clause); accord United  States v.
                                                 ______ ______________



            Johns, 5 F.3d  1267, 1272  (9th Cir. 1993);  see also  United
            _____                                        ___ ____  ______



            States  v. Prezioso, 989 F.2d 52, 53 (1st Cir. 1993) (holding
            ______     ________



            that Guideline amendments that are "substantive" rather  than



            "clarifying" implicate Ex Post Facto Clause).



                      We need  not reach DeGrandis' ex  post facto claim.



            Assuming  but  not deciding  that  (1)  the district  court's



            decision not to depart downward was based on a belief that it



            lacked legal  authority to depart  based on lack  of youthful



            guidance and (2) the district court, contrary to that belief,



            did  have  such  authority,3  we hold  nonetheless  that  the



            factual record does not support a downward departure for lack



            of youthful guidance.



                      This  circuit  has  not  decided  whether  lack  of



            youthful  guidance was  a  permissible  ground for  departure


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            3.  In order to assume  that such authority existed, we  must

            further  assume   that  lack  of  youthful   guidance  was  a

            permissible  ground  for departure  at the  time of  the bank

            robbery, and therefore the application of Guideline   5H1.12,

            which was  in effect at the time of sentencing but not at the

            time of the offense, would violate the Ex Post Facto Clause.



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before   5H1.12 was added to the Guidelines in 1992; only the



            Ninth and  District of  Columbia Circuits have  approved such



            departures.   See  United States  v. Clark,  8 F.3d  839, 845
                          ___  _____________     _____



            (D.C.  Cir. 1993); United States v. Anders, 956 F.2d 907, 913
                               _____________    ______



            (9th Cir. 1992), cert. denied,  113 S.Ct. 1592 (1993); United
                             _____ ______                          ______



            States v. Floyd, 945 F.2d 1096, 1099  (9th Cir. 1991).  Floyd
            ______    _____                                         _____



            and  Anders were  decided  before the  addition of  Guideline
                 ______



              5H1.12.  The District of  Columbia and Ninth Circuits  have



            upheld departures  for lack  of youthful guidance  even after



              5H1.12 became effective,  applying the pre-1992  Guidelines



            to avoid  ex post facto problems.  Clark, 8 F.3d at 845 (D.C.
                                               _____



            Cir. 1993); Johns, 5 F.3d at 1272 (9th Cir. 1993).
                        _____



                      The Ninth Circuit has  approved departures for lack



            of  youthful guidance  based  on evidence  of abandonment  by



            parents,  lack of  education,  and imprisonment  as a  youth,



            provided  that there is a nexus between those factors and the



            crimes for which the defendant  is being sentenced.   Anders,
                                                                  ______



            956 F.2d  at 913; Floyd, 945  F.2d at 1099.   The District of
                              _____



            Columbia Circuit relied on Anders and Floyd in holding that a
                                       ______     _____



            combination of  childhood exposure  to domestic  violence and



            lack  of  youthful  guidance  was a  permissible  ground  for



            departure.   Clark,  8 F.3d  at 845.   Cf.  United States  v.
                         _____                     ___  _____________



            Haynes,  985 F.2d 65, 68-69 (2d Cir. 1993) (rejecting lack of
            ______



            youthful guidance  as grounds for departure  and stating that



            defendant failed  in  any  event to  make  out  its  elements


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(abandonment by parents, lack of  education, and imprisonment



            as a minor), citing Floyd,  945 F.2d at 1099).   Cognizant of
                                _____



            these holdings from other  circuits, we shall assume arguendo
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            that  lack of  youthful  guidance  was,  in January  1992,  a



            "special  circumstance[]  .  .  .  of  the  `kind'  that  the



            Guidelines, in principle, permit[ted] the sentencing court to



            consider."  United States  v. Rivera, 994 F.2d 942,  951 (1st
                        _____________     ______



            Cir. 1993).



                      In  Rivera, this  court  explained the  appropriate
                          ______



            legal analysis for  departures from the  Guidelines.  Id.  at
                                                                  __



            946-52.  In assessing  circumstances "where the Guidelines do



            not expressly forbid, encourage, or discourage departures . .



            .,  the district court will  decide whether (and,  if so, how



            much to  depart) by examining  the `unusual' nature  of these



            circumstances."  Id. at 949.  Put differently, "the law tells
                             __



            the judge,  considering  departure, to  ask basically,  'Does



            this   case  fall   within   the  "heartland"   [of   typical



            circumstances]  or  is it  an unusual  case?'"   Id.  at 948.
                                                             __



            Rivera directs  the appellate  court to "review  the district
            ______



            court's  determination of  `unusualness' with  full awareness



            of,  and respect  for, the  trier's superior  `feel' for  the



            case."  Id. at 952.  We apply this framework for review here.
                    __


At the  conclusion of the  sentencing hearing,  the



            district judge stated that, if he had the authority to depart


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for lack of youthful guidance, he would have imposed a prison



            sentence  of 90 months instead  of 151 months.   The district



            judge, however, made no  specific factual findings to support



            such a departure, other than to implicitly adopt the facts in



            the  presentence report  and  the  mental  health  evaluation



            report.   The comments of the district judge are not entirely



            clear.  At  one point  in the sentencing  hearing, he  stated



            that the mental health evaluation report did  not support the
                                                          ___



            requested departure for lack of youthful guidance; at a later



            point, he stated that the report  did support such departure.



            Although  the basis for the district court's decision is less



            than  certain,   we  have  nonetheless  examined  the  entire



            sentencing record with the  "respect for the trier's superior



            `feel'" called for in Rivera.  Id.
                                  ______   __



                      Unfortunately for DeGrandis,  the circumstances  of



            his youth are  not unusual among criminal offenders, and thus



            do not justify  the departure he seeks.   Although he had  an



            alcoholic father  who was  physically  and verbally  abusive,



            that abuse was directed  primarily toward DeGrandis'  mother.



            Nor was DeGrandis  abandoned by his parents in  his formative



            years.   After  his parents  separated during  his fourteenth



            year, he continued to  live with his mother in  South Boston,



            his home  at the time  of his arrest.   After the separation,



            DeGrandis maintained  some contact with his  father, who also



            lived in South  Boston.   DeGrandis did not  have an  unusual


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lack  of  education,  having done  well  in  school until  he



            dropped out  in  the ninth  grade,  apparently because  of  a



            distaste  for  forced busing.    While  in state  prison  for



            earlier offenses, he earned a General Equivalency Diploma and



            took  college  classes.   DeGrandis'  entanglements  with the



            criminal  justice system did not begin  until he was nineteen



            years old; he had no juvenile adjudications and therefore was



            never imprisoned as  a youth.   Although the  suicide of  his



            brother in 1988 was no doubt a traumatic event, DeGrandis was



            23  years old  at the  time of the  unfortunate event  and it



            therefore does  not reflect  on  his youthful  circumstances.



            Contrary to DeGrandis' assertion,  these facts do not warrant



            a departure for lack of youthful guidance.4



                      Our   conclusion  is  supported   by  the  clinical



            findings  in  the  mental  health  evaluation  report,  which



            concluded  that the "impact on DeGrandis of being raised in a



            dysfunctional family due to his parents' continuous  fighting



            and subsequent separation" was that DeGrandis "developed some



            dysfunctional methods  of dealing with stress,"  but that "he



            could  have decided to change aspects of his life and adopted



            a different lifestyle."  The Guidelines in effect at the time



            of his offense  and at  the time of  his sentencing  provided



            that  mental  and  emotional  conditions  are not  ordinarily



                                
            ____________________



            4.  Once  again,  we assume  but do  not  decide that  such a

            departure was  permissible in  an appropriate case  where the

            offense occurred before U.S.S.G.   5H1.12 became effective.



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relevant factors for  departure.  U.S.S.G.    5H1.3.  To  the



            extent that DeGrandis was mentally or emotionally impacted by



            his difficult upbringing, we do not find Degrandis' condition



            extraordinary.  See Rivera, 994 F.2d at 948.  It  does appear
                            ___ ______



            from  the  record  that  drug addiction  has  been  the  most



            powerful demon with which DeGrandis has battled.  If there is



            a nexus between his situation as a youth and his crimes, that



            nexus is drug addiction.   The need for money to support that



            addiction is the most likely motivation for his crimes.  Drug



            abuse, however,  was a forbidden grounds  for departure under



            the Guidelines  in effect at the  time of his offense  and at



            the time of his sentencing.  U.S.S.G.   5H1.4.



                      Thus, we find that  the circumstances of DeGrandis'



            youth do not take  him outside the "heartland" of  the career



            offender guideline.   To the  extent that the  district judge



            made  a finding that  DeGrandis' background  was sufficiently



            unusual to justify a departure for lack of youthful guidance,



            that  finding  was   erroneous  under  Rivera's  "respectful"
                                                   ______



            standard  of  review.     994  F.2d  at  952.     Remand  for



            resentencing  would therefore be "pointless."  See id. at 953
                                                           ___ __



            ("we should not (and would not) order a new proceeding were .



            .  .  there no  significant  possibility that  the  facts and



            circumstances would  permit  the district  court lawfully  to



            order a departure").


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Accordingly, the sentence  imposed on DeGrandis  by



            the district judge is affirmed.
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