United States v. Edgar Wayne Webb

49 F.3d 636, 1995 U.S. App. LEXIS 3973, 1995 WL 82674
CourtCourt of Appeals for the Tenth Circuit
DecidedFebruary 28, 1995
Docket93-3400
StatusPublished
Cited by31 cases

This text of 49 F.3d 636 (United States v. Edgar Wayne Webb) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Edgar Wayne Webb, 49 F.3d 636, 1995 U.S. App. LEXIS 3973, 1995 WL 82674 (10th Cir. 1995).

Opinions

TACHA, Circuit Judge.

The only issue presented by this appeal is whether the district court erred in granting a downward departure from the sentence range prescribed by the United States Sentencing Guidelines (U.S.S.G.). We have jurisdiction pursuant to 28 U.S.C. § 1291 and reverse.

I. Background

As part of a marijuana eradication effort, the Morris County sheriff, the Kansas National Guard, and the Kansas Bureau of Investigation (KBI) engaged in surveillance efforts to locate cultivated marijuana. • Aerial surveillance revealed marijuana at defendant Edgar Wayne Webb’s residence. The sheriff and a KBI agent confirmed that observation by viewing defendant’s yard from a.nearby football field. The next day, KBI agents executed a search warrant and found 142 cultivated marijuana plants in a fenced area of defendant’s backyard. Defendant consented to a search of his house, where agents found additional marijuana. They also discovered a .22 caliber semiautomatic rifle with a homemade silencer attached and a second, partially-complete homemade silencer.

Defendant cooperated throughout the agents’ search and admitted to cultivating the marijuana. He showed the agents his “personal stash” of marijuana and stated that he was addicted to the substance. Defendant asserted that he grew the marijuana for his own use and that he neither sold nor gave it away.

A jury convicted defendant of possession of marijuana in violation of 21 U.S.C. § 844(a), and of possession of unregistered firearms and firearms not identified by a serial number in violation of 26 U.S.C. § 5861(d) and (i).1 The Sentencing Guidelines prescribed a range of twenty-seven to thirty-three months imprisonment for these offenses. The district court, however, sentenced defendant to three years probation (including six months of home confinement). The government now appeals the district court’s decision to depart downward from the applicable guideline range.

II. Discussion

The Guidelines prescribe sentencing ranges for a “‘heartland,’ a set of typical cases embodying the conduct that each guideline describes.” U.S.S.G. Ch. 1, Pt. A(4)(b), intro, comment. Although the Sentencing Reform Act states that district courts may depart from these ranges, it permits departure only where a “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). The Guidelines themselves state that a departure is justifiable only in the “atypical case, one to which a particular guideline linguistically applies but where conduct significantly differs' from the norm.” U.S.S.G. Ch. 1, Pt. A(4)(b), intro, comment. Moreover, when a district court decides to depart from the Guidelines, it must state the specific reasons ■ for doing so. 18 U.S.C. [638]*638§ 3553(c)(2); United States v. Smith, 888 F.2d 720, 723 (10th Cir.1989), cert. denied, 494 U.S. 1068, 110 S.Ct. 1786, 108 L.Ed.2d 788 (1990).

In reviewing a district court’s departure from the Guidelines, we apply a three-step analysis:

First, we determine de novo whether the circumstances cited by the district court admit of a factor not adequately taken into account by the Sentencing Commission which would justify departure. Second, we review the district court’s factual findings supporting departure and determine whether they were clearly erroneous. Third, if the departure was justified, we review the degree of departure to determine whether it was reasonable.

United States v. Ziegler, 39 F.3d 1058, 1061 (10th Cir.1994); see also United States v. Peña, 930 F.2d 1486, 1494 (10th Cir.1991). In this case, we need address only the first step — whether the factors relied on by the district court justify its departure.

The district court believed that a “downward departure [wa]s not only authorized but absolutely essential.” The court based its ruling on three general justifications: (1) defendant’s psychiatric history and condition; (2) his son’s need to have defendant care for him; and (3) the “unsophisticated nature of the silencers.”2 The court’s primary emphasis was that defendant was the sole caretaker of his son and that the son “needs to be taken care of.”

This court has upheld departures based in part on the adverse effect of incarceration on family members. See Peña, 930 F.2d at 1494-95 (upholding a downward departure for a defendant whose illegal conduct was aberrational, who was a single parent of a two-month old, and who supported another daughter and her infant). But the Guidelines start from the premise that “[fjamily ties and responsibilities ... are not ordinarily relevant in determining whether a sentence should be outside the applicable guideline range.” U.S.S.G. § 5H1.6. Consequently, a district court must identify some extraordinary personal circumstances warranting mitigation in sentencing to justify a departure.

In the case at bar, the district court was sensitive to the relationship between defendant and his son, Dylan. Indeed, some of the medical evidence supports the finding that defendant is a loving and conscientious parent and that his son has served as a stabilizing influence in defendant’s life. There was also some evidence that defendant contributed to his son’s well-being; the son apparently was on the honor roll in school before defendant’s incarceration but was having difficulty thereafter.

The court may also have relied on defendant’s unusual family situation. Defendant’s three ex-wives all had children by their prior marriages. Defendant’s son is his only child, the product of his third marriage. In that divorce defendant was awarded custody. The presentence report indicates Dylan would stay with a stepson of defendant if he were incarcerated. That stepson is apparently in his early twenties and never finished high school.

Although unfortunate, these circumstances are insufficiently aberrational to place defendant’s case outside the “heartland” contemplated by the Guidelines; that is, this is not an “atypical case” in which “a particular guideline linguistically applies but where conduct significantly differs from the norm.” The defendant’s role as a “sole caretaker” and the child’s need “to be taken care of’ do not render the circumstances of this case [639]*639extraordinary. Defendant’s family situation therefore cannot justify a departure from the applicable guideline range.

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Bluebook (online)
49 F.3d 636, 1995 U.S. App. LEXIS 3973, 1995 WL 82674, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-edgar-wayne-webb-ca10-1995.