Opinions of the United 1995 Decisions States Court of Appeals for the Third Circuit
2-28-1995
USA v Evans Precedential or Non-Precedential:
Docket 94-1546
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Recommended Citation "USA v Evans" (1995). 1995 Decisions. Paper 64. http://digitalcommons.law.villanova.edu/thirdcircuit_1995/64
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___________
No. 94-1546 ___________
UNITED STATES OF AMERICA
v.
FRANK JOSEPH EVANS, Appellant
_______________________________________________
On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Criminal No. 92-cr-00689-5) ___________________
Submitted Pursuant to Third Circuit LAR 34.1(a) November 3, 1994
Before: GREENBERG, SCIRICA and LEWIS, Circuit Judges
(Filed: February 28, l995 )
L. FELIPE RESTREPO, ESQUIRE Krasner & Restrepo 924 Cherry Street, 2nd Floor Philadelphia, Pennsylvania 19107
Attorney for Appellant
FRANCIS C. BARBIERI, JR., ESQUIRE Office of the United States Attorney 615 Chestnut Street Philadelphia, Pennsylvania 19106
Attorney for Appellee __________________
OPINION OF THE COURT __________________
SCIRICA, Circuit Judge.
Frank Joseph Evans and nine other defendants were
charged in a 25-count indictment with conspiracy and drug
trafficking offenses. On April 21, 1993, Evans pled guilty to
conspiracy to distribute more than five kilograms of cocaine (21
U.S.C. § 846 (1988)) and criminal forfeiture (21 U.S.C. § 853
(a)(1)-(2) (1988)). On July 8, 1993, the defendant filed a pro
se motion to withdraw his guilty plea which was denied on October
15, 1993. On May 9, 1994, the defendant was sentenced to 360
months imprisonment followed by five years supervised release.
He was also ordered to pay a special assessment of $50 and a fine
of $1,000. We will vacate the defendant's sentence and remand to
the district court for resentencing.
I.
The defendant was arrested in Houston, Texas on July
20, 1992, while operating a motor vehicle containing 36 kilograms
of cocaine in a concealed compartment. He identified himself to
law enforcement officers as Frank Evans and produced a
Pennsylvania driver's license which confirmed this information.
On at least three subsequent court appearances, including his
change of plea hearing, the defendant identified himself as Frank
Evans. The defendant's true identity was first learned when he
disclosed it to a probation officer after he pled guilty but
before his sentencing. The government, through fingerprint
comparison, confirmed the defendant was in fact Ronald Dawkins.
Dawkins had a prior criminal record and was wanted as a parole
absconder and fugitive in South Carolina.
At sentencing, the district court rejected the
government's contention that the defendant obstructed justice by
giving law enforcement officials a false name and denied the
defendant's request for a downward departure based upon his
disclosure of his true identity. The court then sentenced the
defendant to 360 months imprisonment.1
II.
The district court may depart from the applicable range
calculated under the United States Sentencing Guidelines where
"the court finds that there exists an aggravating or mitigating
1 . The presentence report determined the defendant's base offense level to be 40 because of his participation in the delivery of between 500 and 700 kilograms of cocaine. This was supported by testimony presented by the government at the sentencing hearing. The base level was increased by two for the defendant's role as a manager in the organization under U.S.S.G. § 3B1.1(c) and decreased by two for his acceptance of responsibility under U.S.S.G. § 3E1.1(a). The defendant's criminal history was determined to be in category III, based on five criminal history points. Two of these points were assigned because the offense was committed during a period of a previous criminal justice sentence, including parole, and the other three points resulted from the prior conviction itself. Thus, the five points were added as a direct result of the defendant's disclosure of his true identity. Absent this disclosure, the defendant would have had no criminal history points (criminal history category I), and the minimum sentence under the guidelines would have been 292 months instead of 360 months. 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) (1988). According to the policy
statement in U.S.S.G. § 5K2.0, circumstances that may warrant
departure are generally of two kinds: factors the Commission did
not adequately consider in formulating the guidelines and factors
that were considered but resulted in an inadequate guideline
level because of unusual circumstances substantially in excess of
the ordinary.
A discretionary decision by the trial judge that a
departure is not justified is not reviewable. See United States
v. Gaskill, 991 F.2d 82, 84 (3d Cir. 1993); United States v.
Higgins, 967 F.2d 841, 844 (3d Cir. 1992). But there is
appellate jurisdiction where a court refuses to depart from the
guidelines because it believes it lacks the authority to do so.
Gaskill, 991 F.2d at 84; Higgins, 967 F.2d at 844.
In this case, the defendant maintains that except for
his voluntary disclosure, his true identity would not have been
ascertained. The probation officer who prepared the presentence
investigation acknowledged he would not have discovered the
defendant's true identity without the disclosure: "[A]s far as I
knew he had no criminal history and I would not have looked any
further from that point. . . . [I] would never have found out
who he was."
The defendant contends that his voluntary admission to
the probation officer of his true identity and his prior record are circumstances of a kind or to a degree not contemplated by
the sentencing guidelines. He maintains that his sentence should
be vacated and the matter remanded for resentencing because the
district court erroneously believed it did not have authority to
depart downward from the sentencing guideline range.
The government claims the sentencing court believed it
possessed the authority under § 5K2.0 to depart if it found that
circumstances warranted, but decided there was no basis for such
a departure. Evidence of this belief, the government contends,
is found in the court's order of May 3, 1994, stating in part,
"it is hereby ORDERED that parties are notified that this Court
is considering a reduction in the criminal history category --
from category III to category I -- under which Mr. Evans will be
sentenced pursuant to § 5K2.0 due to the unique circumstances
that surrounded Mr. Evans' presentence report interview."
It is true that a substantial portion of the sentencing
hearing was devoted to a discussion of the possibility of
downward departure because the defendant had volunteered
information that resulted in an increase in his criminal history
category. During this discussion the court stated: But secondly . . . am I not entitled in measuring in some way the credit that's to be given for acceptance of responsibility or for something else, entitled to take into consideration that this man volunteered all this knowledge with these consequences, not that he had a right to withhold it, but that despite the consequences he volunteered it? And I just wonder whether that is a situation which is -- was contemplated by the drafters of the guidelines. But at the conclusion of the hearing the judge stated: I hold that I do not have the power to apply a lesser guideline or to make a downward departure. I must say that I feel that . . . a 30-year sentence is more severe than I would impose were I free to find a lesser guideline or free to depart downward. But I hold that I do not have the power.
Although the government makes a plausible argument that
the court determined there was no justification for a departure,
the matter is sufficiently ambiguous ("I hold that I do not have
the power . . . .") to require vacating the sentence and
remanding if the defendant's actions could satisfy the
requirements of U.S.S.G. § 5K2.0. Cf. United States v. Mummert, 34 F.3d 201, 205 (3d Cir. 1994) (vacating sentence and remanding
to district court because "the record does not make clear whether
the district court's denial of departure was based on legal or
discretionary grounds").
III.
U.S.S.G. § 5K2.0 quotes the language of 18 U.S.C. §
3553(b), permitting the sentencing court to "impose a sentence
outside the range established by the applicable guideline, 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.'"
To determine whether a proposed departure satisfies §
5K2.0, we must first consider whether the defendant's actions could constitute a "mitigating circumstance." If so, then we
must decide whether such circumstance is "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." U.S.S.G. § 5K2.0
(quoting 18 U.S.C. § 3553(b)).
A.
Since the adoption of the sentencing guidelines, courts
have been wrestling with just what constitutes a mitigating
circumstance that justifies downward departure. In United States
v. Lieberman, 971 F.2d 989, 998-99 (3d Cir. 1992), we permitted
the district court to depart downward when a prosecutor's
manipulation of an indictment foreclosed the grouping of two
related offenses under the guidelines, thereby resulting in a
higher sentence than usual. We allowed the departure because
otherwise "it would raise the prosecutor to a position supreme
over the district judge vis-a-vis sentencing by virtue of the
uncontrolled charging discretion." Id. at 998. In United States
v. Gaskill, 991 F.2d 82 (3d Cir. 1993), we allowed a downward
departure because the defendant was the sole source of care for
his mentally ill wife. In so holding, we noted that "departures
are an important part of the sentencing process because they
offer the opportunity to ameliorate, at least in some aspects,
the rigidity of the Guidelines themselves." Id. at 86. Thus, as
we noted in United States v. Bierley, 922 F.2d 1061, 1067 (3d
Cir. 1990), "[i]f a case is atypical, or for some other reason
falls outside the scope of cases considered by the Sentencing Commission, the Guidelines have fairly expansive language
allowing for discretionary departure."
But in United States v. Newby, 11 F.3d 1143, 1148-49
(3d Cir. 1993), cert. denied, 114 S.Ct. 1841 (1994), we held that
prisoners' loss of good time credits as a disciplinary sanction
for assaulting prison guards could not be considered a mitigating
factor in their subsequent convictions and sentences for
assaulting, impeding, and interfering with those same guards. We
stated that "[t]he gravamen of a mitigating circumstance is that
it somehow reduces the defendant's guilt or culpability. It is a
circumstance that 'in fairness and mercy, may be considered as
extenuating or reducing the degree of moral culpability.'" Id. at
1148 (quoting Black's Law Dictionary 1002 (6th ed. 1990)).
The government here cites the Newby definition of
"mitigating circumstance" and contends that the defendant's
disclosure of his identity does not impact upon his "guilt or
culpability" for the offense. But the government's reliance on
Newby is misplaced. In United States v. Monaco, 23 F.3d 793 (3d
Cir. 1994), the government offered a similar argument as to why
the defendant's anguish at seeing his son convicted for aiding
and abetting his crime could not be used as the basis for a
downward departure. We rejected that contention, noting that
"the Commission [did] not intend to limit the kinds of factors,
whether or not mentioned elsewhere in the guidelines, that could
constitute grounds for departure in an unusual case." Id. at 803 (quoting U.S.S.G. Manual 6 (1993)). We noted in Monaco that the reasons for departure in Gaskill and Lieberman had nothing to do with the defendant's culpability. We held, therefore, that "to
the extent that Newby's pronouncement on moral culpability can be
read to implicitly overrule decisions such as Gaskill and
Lieberman, the Newby language must be considered dictum.
Accordingly, nothing in Newby prevents a downward departure in
this case." Id. (citation and footnote omitted).2
We find the Monaco reasoning applicable to this case.
Furthermore, a less restrictive view of the district
court's discretion to depart downward is bolstered by the
Sentencing Commission's recent amendment to U.S.S.G. § 5K2.0.
The amendment, which became effective on November 1, 1994, added
the following language: An offender characteristic or other circumstance that is not ordinarily relevant in determining whether a sentence should be outside the applicable guideline range may be relevant to this determination if such characteristic or circumstance is present to an unusual degree and distinguishes the case from the "heartland" cases covered by the guidelines in a way that is important to the statutory purposes of sentencing.
U.S.S.G. § 5K2.0 (Policy Statement)
The Sentencing Commission said this amendment provided
guidance "as to when an offender characteristic or other
2 . Monaco did not, however, disturb Newby's holding that the loss of good time credits did not merit downward departure. As we noted in Monaco, "we construe Newby as focusing primarily on the fact that because criminal sentences and disciplinary sanctions are designed to serve different purposes, a departure would defeat the goals of the criminal justice system by giving incarcerated defendants lesser sentences than they deserved." 23 F.3d 793, 803 n.16 (3d Cir. 1994). circumstance (or combination of such characteristics or
circumstances) that is not ordinarily relevant to a determination
of whether a sentence should be outside the applicable guideline
range may be relevant to this determination." Amendment 508,
U.S.S.G. App. C. The amendment provides that a court may use a
broad range of factors in departing from the guidelines, allowing
characteristics or circumstances "not ordinarily relevant" to be
considered if "important to the statutory purposes of
sentencing." Therefore, we believe the defendant's disclosure of
his true identity could constitute a "mitigating circumstance,"
within the meaning of § 5K2.0.
B.
Although we have determined that defendant's conduct
potentially could constitute a "mitigating circumstance," we
still must examine whether such circumstance could be "of a kind,
or to a degree, not adequately taken into consideration by the
Sentencing Commission in formulating the guidelines." U.S.S.G. §
5K2.0. The defendant contends that his disclosure of his true
identity constitutes a basis for departure as acceptance of
responsibility substantially in excess of the norm under § 5K2.0
and our decision in United States v. Lieberman, 971 F.2d 989 (3d
Cir. 1992).
In Lieberman, a bank vice president was accused by bank
officials of embezzlement. Once accused, Lieberman immediately
admitted his wrongdoing, resigned his position, explained to bank
managers how they could detect such wrongdoing in the future, and
agreed to make restitution for more than he thought he owed. Id. at 991, 996. Lieberman received an initial two-level deduction
for acceptance of responsibility under U.S.S.G. § 3E1.1(a),3 as
did the defendant here. The district court then departed from
the guidelines by granting Lieberman a one-level reduction based
on his "unusual degree of acceptance of responsibility." Id. at
992.
After a thorough review of the guidelines' treatment of
"acceptance of responsibility" and the justifications for a
downward departure, we stated in Lieberman that "[t]here is some
indication from the Sentencing Commission that the scheme
established by the Guidelines encompasses a departure for the
degree of acceptance of responsibility." Id. at 995. We
affirmed the district court on this ground, noting that "courts
'have recognized that a defendant's ameliorative post-arrest
conduct may justify a departure even though section 3E1.1 rewards
acceptance of responsibility'" and "that a sentencing court may
depart downward when the circumstances of a case demonstrate a
degree of acceptance of responsibility that is substantially in
excess of that ordinarily present." Id. at 996 (citations
omitted).
The government claims, however, that defendant's
conduct here does not even merit recognition as acceptance of
responsibility and certainly not as acceptance "substantially in
3 . U.S.S.G. § 3E1.1(a) provides: "If the defendant clearly demonstrates acceptance of responsibility for his offense, decrease the offense level by 2 levels." The commentary then lists eight nonexclusive factors a court may consider in determining whether to apply § 3E1.1. excess of that ordinarily present," as required by Lieberman.
Id. The government contends the defense position ignores the
tenuous nature and limited scope of the defendant's acceptance of
responsibility.4 In fact, the government maintains that the
defendant's disclosure of his true name was nothing more than
what was required of him and, had he failed to do so, he would
have been subject to an enhancement for obstruction of justice
pursuant to U.S.S.G. § 3C1.1. Compare United States v. Mohammed,
27 F.3d 815, 822 (2d Cir.) ("An obstruction enhancement is
warranted when a defendant provides false information [such as
his name] to the Probation Department."), cert. denied, 115 S.
Ct. 451 (1994), with United States v. Alpert, 28 F.3d 1104, 1107-
08 (11th Cir. 1994) (en banc) ("[A] district court applying the
enhancement because a defendant gave a false name at arrest must
explain how that conduct significantly hindered the prosecution
or investigation of the offense.").5
4 . It is true that soon after pleading guilty the defendant moved to withdraw his guilty plea. When that motion was denied, he then contested the extent of his involvement in the conspiracy and disputed the claim that he had held a position as a supervisor in the organization. By accepting the probation department's recommendation, however, the government contends the court necessarily found that the defendant had been responsible for the distribution of more than 500 kilograms of cocaine and had maintained a managerial role in the conspiracy. These are factors for the district court to consider in determining whether to exercise its discretion to depart downward. 5 . We note that an Application Note to U.S.S.G. § 3E1.1 states that "a defendant is not required to volunteer, or affirmatively admit, relevant conduct beyond the offense of conviction in order to obtain a reduction" under this section. Although we do not condone the defendant's concealment
of his true identity, we do not believe the district court is
foreclosed from deciding that the defendant's later disclosure of
his correct name might warrant downward departure. As we noted,
the probation officer who prepared the presentence investigation
admitted he would not have discovered the defendant's true
identity without the disclosure. It would appear, therefore,
that the defendant has made a colorable argument that his
voluntary disclosure of identity might constitute a degree of
acceptance of responsibility substantially in excess of the norm.
The district court indicated at the sentencing hearing that the
defendant's disclosure despite the consequences might present
such a situation of extraordinary acceptance of responsibility
not contemplated by the guidelines. We leave this determination
to the discretion of the sentencing court.
IV.
For the foregoing reasons, we will vacate the
defendant's sentence and remand to the district court for
resentencing.