June 21, 1994 UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
No. 92-2228
UNITED STATES OF AMERICA,
Appellee,
v.
RAMON HERNANDEZ COPLIN,
Defendant, Appellant.
ERRATA SHEET
The court's opinion of March 31, 1994, is amended by inserting a new footnote 9, immediately following "Cf. U.S.S.G.
5G1.2(d)." at page 20, line 24, which reads as follows:
"[T]he total punishment" under U.S.S.G. 5G1.2 is normally determined by the guideline range, see id., subsection (b), but
where the sentencing court lawfully departs from the guideline range, "the total punishment" is the punishment specified as a result of that departure; and sentences then run consecutively "to the extent necessary to provide a combined sentence equal to the total punishment." See id. subsection (d).
UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT FOR THE FIRST CIRCUIT
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jose Antonio Fuste, U.S. District Judge]
Before
Breyer, Chief Judge,
Coffin, Senior Circuit Judge,
and Boudin, Circuit Judge.
Laura Maldonado Rodriguez, Assistant Federal Public Defender,
with whom Benicio Sanchez Rivera, Federal Public Defender, was on
brief for appellant. Edwin O. Vazquez, Assistant United States Attorney, with whom
Guillermo Gil, United States Attorney, and Jose A. Quiles-Espinosa,
Senior Litigation Counsel, were on brief for the United States.
March 31, 1994
BOUDIN, Circuit Judge. Ramon Hernandez Coplin was
indicted by a grand jury in two separate indictments, each
relating to a separate episode of smuggling aliens into the
United States. The first indictment charged that Hernandez
on April 16, 1992, had been captain of a yawl intercepted a
mile off the coast of Puerto Rico carrying 92 illegal aliens
from the Dominican Republic. The yawl was running without
lights, had no safety equipment and sought to avoid capture.
Hernandez, and his assistant Julio Reyes Acosta, were charged
in four counts with seeking to smuggle four of the alien
passengers into the United States. 8 U.S.C. 1234(a)(1)(A).
Thereafter, on July 1, 1992, Hernandez and Reyes were
charged in a second indictment with six counts, under the
same statute, for seeking to smuggle six aliens into the
United States on March 26, 1992. On this earlier occasion a
yawl had been used, about the same number of passengers were
aboard, and the same Puerto Rican coastline approached. Two
women drowned that night and their bodies washed up upon the
shore. The yawl made its way back to the Dominican Republic.
As in the earlier indictment, each count related to a
different alien.
On July 6, 1992, Hernandez pled guilty to all counts of
both indictments pursuant to a plea agreement. In exchange
for the pleas, the prosecutor agreed to dismiss yet another
federal indictment against Hernandez (for illegally
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reentering the United States after a prior deportation) but
made no other promises. Reyes entered guilty pleas at the
same time. In the change of plea hearing, the government
submitted a written version of what it said its trial
evidence would show. Reyes agreed with the government's
version of events; Hernandez did so only with a
qualification. The present appeal revolves around that
disagreement.
In substance, Hernandez and Reyes both admitted that
they had been engaged in the smuggling operations charged in
the indictments. As to the March 26 operation, the
government's written version of events included the following
language (the emphasis is ours):
At approximately midnight and while the yawl was approximately 100 yards from the beach at Aguadilla, Puerto Rico, an aircraft was heard in the vicinity. At said time, the captain of the yawl, that was later identified as defendant Ramon Hernandez Coplin, initially told the passenger (sic) that they must jump into the water because he did not want to be arrested. Due to the fact that
some passengers were hesitating to jump, defendant
Ramon Hernandez Coplin drew a gun and ordered them
to jump into the water.
The evidence will show that females were yelling that they did not know how to swim or for help because they were drowning. Defendant Ramon Hernandez Coplin and his assistant, defendant Julio Reyes Acosta, who aided and abetted in the piloting of the yawl, ignored the pleas of the females and continued offshore back to the Dominican Republic to avoid arrest.
At the hearing, the trial judge summarized the
government's proffer, including the portion that we have
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emphasized, and Reyes agreed (under oath) that the proffer
was accurate. Hernandez' counsel said that Hernandez also
accepted the proffer except that "he [Hernandez] has told me
that at no time did he point a gun at anybody, or, and also
that he did not push off the boat, anybody." The district
judge then said this factual dispute should be the object of
evidence in the sentencing hearing. The district judge then
drew a line through the words emphasized above and Hernandez
signed the amended version of the proffer. The guilty pleas
were then accepted.1
On September 9, 1992, a sentencing hearing was held for
Hernandez. The government presented as a witness one of the
aliens smuggled into Puerto Rico on March 26; testifying
through an interpreter, the witness said that Hernandez "had
like a revolver in his hand and said, `Everybody jump in,
everybody jump in.'" The witness also testified that "the
ladies were screaming that they were going to drown."
Defense counsel did not cross examine but the district judge
then asked, "Are you sure it was a gun?" The witness
replied, "I knew it as a revolver."
1Hernandez maintained his position when interviewed by the probation officer, but the probation officer disbelieved him. In objections to the pre-sentence report, Hernandez denied ordering anyone to jump into the water 100 yards from the beach; asserted that the boat had actually hit the beach; denied that he had any weapons; and seemingly denied that he had known that the two women who had died were in danger.
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The defense then called Hernandez who testified under
oath through an interpreter. He testified that when the boat
reached the shore "the people got out of the boat quite
comfortably and started heading in land (sic)" and that he
did not hear anyone scream. On cross examination, Hernandez
said, "I never forced anybody, I didn't have a weapon. I
have never used a firearm." Finally, the government called
an agent of the Immigration and Naturalization Service to
refute Hernandez' claims that the boat had reached the shore;
the INS agent, based on the survival of the yawl and on
interviews with six passengers, gave his opinion that the yawl had not reached the beach in Puerto Rico on March 26.
Reyes was not called as a witness by either side.
The district judge then made an express finding that
Hernandez had brandished a gun and threatened the two women
who, as a result, jumped into the water and drowned. The
court also inquired into Reyes' failure to appear to reaffirm
his own testimony as to the gun given at the change of plea
hearing, and Reyes' apparent unwillingness to reaffirm that
testimony to the probation officer. Reyes' counsel then
stated that his client told him that "he [Reyes] was afraid
of Mr. Coplin, and that he would not testify in front of Mr.
Coplin as to that matter."
After allowing defense counsel and Hernandez to speak to
the proper sentence, the court computed the offense levels
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under the Sentencing Guidelines.2 The court found that the
base offense level was 9 for the March 26 operation and 9 for
the April 16 operation. U.S.S.G. 2L1.1. The court then
increased both offense levels by two points each because of
the supervisory authority Hernandez exercised over Reyes.
U.S.S.G. 3B1.1(c). The court reduced the figure by two
points as to the April 16 operation for acceptance of
responsibility, U.S.S.G. 3E1.1; but the court refused to make a similar reduction as to the March 26 operation because
Hernandez had not accepted "full responsibility" for his
involvement, "[s]pecifically on the issue of the gun and . .
. the deaths."
The adjusted offense levels corresponded to imprisonment
ranges of 8 to 14 months for the March 26 operation and 4 to
10 months for the April 16 operation. However, the court
invoked its authority to depart upward, 18 U.S.C. 3553(b),
and it imposed sentences of five years' imprisonment for the
March 26 operation and four years' imprisonment for the April
16 operation, specifying that the two sentences were to be
served consecutively. The court found a departure warranted
in both cases by the very dangerous conditions of
transportation in the yawl (e.g., lack of safety equipment
2The 1991 version of the guidelines was in effect at the time of sentencing and all citations in this opinion are to that edition of the guidelines unless otherwise specified.
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and supplies); and the firearm and deaths were found to be
aggravating circumstances in the March 26 operation.
1. On appeal, Hernandez begins by challenging the
departure. Most of the discussion under this head is
effectively an attack on the district court's findings and
characterizations. The trial judge's findings on sentencing
may be set aside only if clearly erroneous. See United
States v. Pineda, 981 F.2d 569, 572 (1st Cir. 1992).
Nevertheless, given the magnitude of the departure, the
specific criticisms made by counsel deserve careful
attention.
First, at sentencing, the district judge orally
described Hernandez' conduct in the March 26 operation as
reckless and criminal behavior resulting in the deaths of two
persons. In the same description, the judge used the word
"murder" in referring to the incident. In a formal
sentencing memorandum, issued a week or so after the
sentencing, the court elaborated on the dangerous conditions
in which Hernandez had transported the aliens and then
referred, "in addition," to Hernandez' "reckless and criminal
behavior, which resulted in the death-murder of two human
beings." United States v. Hernandez-Coplin, 802 F. Supp.
657, 661 (D.P.R. 1992).
Hernandez now points out that the probation officer,
after interviewing the defendant, concluded that it was
"highly probable" that Hernandez did not anticipate the death
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of any of his passengers. But there is no inconsistency
between the probation officer's statement and the district
court's summing up of the matter, even assuming that an
inconsistency mattered. Indeed, while the probation officer
did not use the word "murder," he did say that forcing the
passengers out of the yawl into heavy tides reflected a
reckless disregard for human life and the danger posed to the
passengers was reasonably foreseeable. We think that the trial judge, like the probation
officer, was describing Hernandez' conduct as criminally
reckless and that the word "murder" was used colloquially to
stress the outrageousness of the conduct and to underscore
the evident danger of death that the conduct posed. So read,
the word "murder" is the kind of moral flourish that is
routine at sentencing and wholly within the trial judge's
discretion. As it happens, Hernandez' conduct might well
constitute the offense of murder in some jurisdictions, under
the felony murder doctrine or merely because the conduct
created a sufficiently direct and foreseeable risk of death.
Second, a further challenge to the departure,
defendant's brief in this court takes issue with the district
court's finding that Hernandez did threaten the passengers
with a gun. The brief points out that he consistently denied
doing so, that no gun was found, and that the passenger-
witness spoke of the defendant as having "like" a gun in his
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hand. The first two points are rather easily explained--the
defendant had a motive to lie and was not captured on the
March 26 trip--and the third is based on an incomplete
version of the testimony: after the passenger witness'
ambiguous reference to "like," the trial judge (as already
noted) specifically asked the witness whether he saw a gun
and received an affirmative reply.
In all events, the trial judge heard both the passenger witness and Hernandez testify and specifically resolved the
credibility issue against the latter. Reyes, the co-
defendant, also agreed that the gun had been used, before he
refused to testify--quite possibly out of fear. The
probation officer's report spoke of the use of a handgun by
the defendant being "substantiated by more than one of the
alien witnesses" interviewed by INS. No reviewing court
could possibly find that the district court's own finding
that a gun was used lacked evidentiary support or was clearly
erroneous.
Third, Hernandez argues that the magnitude of the
departure in this case is "inordinately unreasonable,"
arguing that it amounted to an increase of almost 700 percent
over the guideline ranges otherwise applicable. Mathematics
aside, the departure was certainly substantial, the sentence
for the March 26 operation being the statutory maximum of
five years and the four-year sentence for the April 16
operation being several times the guideline maximum.
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There is no doubt that the district court was entitled
to depart from the guideline range in both cases, based
solely upon the dangerous conditions created by an
inadequately equipped vessel. This is a ground for a
departure, as the guidelines and case law make clear,
U.S.S.G. 2L1.1, application note 8; United States v. Reyes,
927 F.2d 48, 52 (1st Cir. 1991), and the undisputed evidence
supports such a finding. It was also clearly permissible under this rubric to treat as a further aggravating factor
the fact, as found by the district court, that Hernandez had
forced passengers into the water resulting in two deaths.
U.S.S.G. 5K2.1.
As to the magnitude of the departure, the test is
whether the departure is "reasonable" and under the case law
the standard of review is quite deferential to the district
judge. Reyes, 927 F.2d at 52-53. The "multiple" represented
by the departure may be unusual in this case, but the number
of voyagers endangered on the second trip and the fact of two
deaths on the first trip also distinguish this case. The
sentencing memorandum sets forth in detail the basis for
finding that the passengers on both trips were recklessly
endangered. 802 F. Supp. at 658-61. We do not think that
the district judge's choice exceeded permissible bounds.
2. In his second argument, Hernandez attacks the
district court's failure to allow a two point reduction for
acceptance of responsibility in relation to the March 26
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operation. Although the district judge did allow such a
reduction for the April 16 operation, based primarily upon
the guilty plea, he denied that reduction for the March 26
operation because Hernandez refused to admit that he had used
a gun and had forced passengers from the boat. This denial,
says Hernandez, is improper because he did admit to the March
26 smuggling operation and is not required to accept
responsibility for other acts not charged in the indictment. This seemingly straightforward issue has engaged courts,
and the Sentencing Commission, in a remarkable amount of
controversy. Construing the pertinent guideline as it read
prior to November 1, 1992,3 this court held that as a matter
of construction the guideline did not call upon the defendant
(as a condition of obtaining the reduction) to admit to
conduct charged in other, related counts that had been
dismissed. United States v. Perez-Franco, 873 F.2d 455 (1st
Cir. 1989). Indeed, two of the three panel members opined
that any such condition could violate the Fifth Amendment's
privilege against self-incrimination. Id. at 461-64.
Thereafter, the Sentencing Commission altered the
guideline's application note, effective November 1, 1992, to
3At that time, the guideline provided--in the 1991 version which applies to this case--that in determining whether the defendant accepted responsibility for "his criminal conduct," U.S.S.G. 3E1.1(a), the court could consider whether the defendant had admitted to involvement in "the offense [of conviction] and related conduct." Id.,
application note 1(c).
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make clear that acceptance of responsibility required the
court to consider the defendant's action in
truthfully admitting the conduct comprising the offense(s) of conviction, and truthfully admitting or not falsely denying any additional relevant conduct for which the defendant is accountable under 1B1.3 (Relevant Conduct).
U.S.S.G. 3E1.1, application note 1(a) (1992). Thus, under
the revised guideline the defendant must admit to the conduct
comprising the offense and either admit or remain silent as
to other relevant conduct. Relevant conduct includes "all
actions and omissions committed . . . by the defendant . . .
that occurred during the commission of the offense of
conviction . . . ." U.S.S.G. 1B1.3(a)(1).
Under this version of the guidelines, Hernandez would
receive no reduction for acceptance of responsibility as to
the March 26 offense. Forcing passengers into the water with
a gun is clearly relevant conduct; and Hernandez did not
accept responsibility for it or remain silent but, as
supportably found by the district judge, lied by
affirmatively denying that conduct. Whatever the Fifth
Amendment implications of requiring the defendant to admit to
another crime, it is clear that the defendant has no license
to lie about the other crime and can be penalized under the
guidelines for doing so. See United States v. Dunnigan, 113
S. Ct. 1111 (1993).
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Hernandez, however, was not directly subject to this
version of the guidelines which became effective after he was
sentenced. The version of section 3E1.1 in effect at
sentencing, as construed by this court in Perez-Franco,
arguably did not require Hernandez to accept responsibility
for anything other than smuggling, see 873 F.2d at 459, and
it is debatable whether the pertinent changes in the current
version should be viewed as a clarification or, instead, as a
substantive change that could not be applied retroactively
under the ex post facto clause. See Ebbole v. United States,
8 F.3d 530 (7th Cir. 1993) (holding the amendment to be
substantive), cert. denied, 62 U.S.L.W. 3589 (U.S. Mar. 7,
1994).
We have concluded that these problems need not be
resolved in this case. Assuming that Hernandez was entitled
to the two- point reduction for acceptance of responsibility,
his false denial--we must regard it as such given the trial
court's findings--also required a two-point increase for
obstruction of justice under U.S.S.G. 3C1.1. This long-
standing provision, which presents no ex post facto problem
in this case, requires a two-level increase for willful
attempts to obstruct justice, at sentencing or otherwise, and
it includes "providing materially false information to a
judge or magistrate." Id., application note 3(f). The
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enhancement is mandatory. United States v. Austin, 948 F.2d
783, 789 (1st Cir. 1991).
This language fully captures Hernandez' action in
denying to the judge that he had used a gun and forced
passengers off his boat into the water. His denials are of
record; the court found them to be lies; and Hernandez knew
what had occurred on the boat and cannot have been innocently
inaccurate. The materiality requirement is satisfied, for a
judge might well take account of the gun episode in
sentencing the defendant for smuggling; indeed, the judge in
this case warned of this possibility at the guilty plea
hearing. Even if the most demanding test of willfulness were
employed, we think that Hernandez had to have made his
statements with knowledge that they might affect his
sentence.4
Thus even if we assume that a two-point reduction should
have been accorded, it is offset by a two-point increase that
should have been imposed. The fact that the government did
not seek this enhancement certainly does not prevent us from
taking note of it in the present context: at worst, the
district court gave the wrong reason for reaching the right
4The Supreme Court's decision in United States v.
Dunnigan, 113 S. Ct. 1111 (1993), suggests that the
willfulness requirement is actually less demanding, and may be satisfied by showing that the defendant lied under oath and that the matter lied about is material--regardless of whether the defendant knew that the lie might affect the outcome. 113 S. Ct. at 1116.
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result in its calculation. Accordingly, the supposed error
if it occurred was harmless to the defendant.
3. In his final attack, Hernandez' brief poses the
question whether the district court erred in refusing to
group together the counts in the two separate indictments.
The gist of the argument is that, according to Hernandez, the
district court was required by U.S.S.G. 5G1.3 to treat all
of the counts of the two indictments together and to apply to
them the grouping rules contained in U.S.S.G. 3D1.1 et seq.
Hernandez' brief claims that these computations would produce
a total offense level of 11, and a maximum guideline range of
8 to 14 months. In this case, we think there is a problem
with the computation of two separate guideline ranges,
although our reasoning and result differ from the position
urged by Hernandez.
Despite Hernandez' reliance on U.S.S.G. 5G1.3(b), that
section almost certainly has nothing to do with this case.
The portion of that section invoked by Hernandez concerned a
defendant who was sentenced under the guidelines while still
subject to an unexpired guidelines sentence previously
imposed. With certain exceptions, 5G1.3(b) provided that
in such a case the new sentence should be computed so that
the old and new sentences together would "equal the total
punishment that would have been imposed under 5G1.2 . . .
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had all the sentences been imposed at the same time."5 In
our view U.S.S.G. 5G1.3(b) refers to cases in which two
sentences are imposed on different occasions.
Admittedly, this is not crystal clear from the language
of the provision itself; one might argue from the words alone
that the provision also embraces a case where two sentences
are imposed sequentially by the same judge on the same day.
But this reading is implicitly refuted by the commentary to
U.S.S.G. 5G1.2 which already provides that the multiple
count provisions apply not only to multiple counts in the
same indictment but also to multiple counts "contained in
different indictments or information for which sentences are
to be imposed at the same time or in a consolidated
proceeding." In other words, the government is right in
arguing that U.S.S.G. 5G1.3 did not apply, but Hernandez is
correct in thinking that the concept embodied in U.S.S.G.
5G1.2 applies anyway.6
5The language that arguably made U.S.S.G. 5G1.3(b) applicable to this case was subsequently deleted from the guidelines, see U.S.S.G., App. C, amendment no. 465, at 290
(1992), but we consider the guideline language as it stood in 1991.
6We say "the concept" because formally part 5G, containing 5G1.2, does not itself come into play until the court has determined a guideline range, and then chosen a specific sentence within or (where a departure occurs) outside the range. Still, 5G1.2 would not make much sense unless we also assumed that the grouping rules under chapter 3, part D had previously been applied to counts "contained in different indictments . . . for which sentences are to be imposed at the same time." Accordingly, we read this concept
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This, however, is only the first step in the sequence.
Even if one treats the use of two indictments rather than one
as irrelevant to sentencing, the question remains how to
apply the guidelines to the multiple counts in this case.
The grouping rules answer this question by first directing
that the district court group together into a single group
each set of "closely related counts." U.S.S.G. 3D1.1(a).
Hernandez argued at length to the district court, and appears
to assume in this court, that all ten counts to which
Hernandez pled guilty comprised one group of closely-related
counts. If this were so, the total offense level for the
entire group would be the offense level for the single most
serious count. U.S.S.G. 3D1.3.
But it is not so because under the guideline definition
of closely related counts, the counts relating to the March
26 smuggling operation constitute one group of closely
related counts and the counts relating to the April 16
operation constitute a separate group of closely related
counts. The grouping rules expressly say that counts are not
to be grouped together where the "[t]he defendant is
convicted of two counts, each for unlawfully bringing one
alien into the United States, but on different occasions."
U.S.S.G. 3D1.2(b), application note 3, example 7. Thus the
district court was quite correct in rejecting Hernandez'
into chapter 3, part D.
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request to treat all of the counts in both indictments as a
single group of closely related counts.
It does not follow, however, that separate guideline
ranges are to be used for the two indictments. Rather, where
the multiple count grouping rules apply but there is more
than one group of closely related counts, the groups must be
combined according to a formula specified in U.S.S.G.
3D1.4. It is not entirely surprising that the district judge
overlooked the final step: neither the prosecutor nor
defense counsel argued for this outcome; the probation
officer apparently overlooked the point; and it is hardly
intuitive that a defendant should receive a volume discount
in sentencing for arguably unrelated offenses.
Why this discount is made available by U.S.S.G. 3D1.4
is nowhere explained in the guidelines. It appears, however,
that the guideline drafters were trying to assure some
discount for crimes that did not happen to fall within the
closely related count definitions but were still sufficiently
related so that merely to compute individual sentences and
add them together would overstate the seriousness of the
offenses.7 However, the guidelines as drafted operate
7For example, a defendant who in a single criminal episode (say, a bank robbery) injured two persons would not normally have the separate counts for the two injuries grouped as "closely related," because two separate victims are involved. U.S.S.G. 3D1.2. But it might be thought by some, including the guideline drafters, that such conduct is more culpable than injuring a single victim but less culpable
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generally, perhaps crudely, by offering the discount wherever
the multiple counts happen to be charged in the same
indictment (or, as we read the guidelines, wherever the
defendant is sentenced at the same time under multiple
indictments).
Because it turns on mechanical choices (namely, the
choice to use a single indictment or treat multiple
indictments together), the volume discount for counts that
are not closely related may sometimes turn out to be
available where its apparent rationale does not apply.
Pertinently, a discount might be warranted where two aliens
are smuggled on a single trip (indeed, the guidelines treat
the counts as closely related); but it may be harder to see
why a discount should be applied for two separate smuggling
ventures at separate times, even though they may be the
subject of a single indictment or two indictments handled
together. Any such anomaly, however, can be handled by
sentencing at the high point of the range or by a departure.
In all events, the discount is explicit: a "combined
offense level is determined by taking the offense level
applicable to the Group with the highest offense level and
increasing that offense level by the amount indicated in the
. . . [specified] table." U.S.S.G. 3D1.4. We have already
than injuring two victims in two entirely different episodes.
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explained why we agree that the district court reached the
right result (or at least one as favorable as the defendant
deserved) in computing an offense level of 11 for the March
26 operation. At this point, U.S.S.G. 3D1.4 called upon
the district judge to increase this figure by 2 levels to
create a combined offense level of 13.8 Instead, the
district court treated the two indictments as giving rise to
separate offense levels and to separate guideline sentencing
ranges.
The question remains whether the omission of the final
refinement had any bearing on the total sentence imposed by
the district court. If the district court had sentenced
within the guideline range, the proper offense level of 13
would have dictated a sentence of imprisonment of 12 to 18
months. The judge chose instead to depart very
substantially, imposing a total term of imprisonment of nine
years. Looking to the factors that apparently underlay the
judge's departure, one may doubt whether the failure to
combine the two offense levels made any difference in the
ultimate sentence of nine years.
Nevertheless, we have chosen to vacate the sentences and
remand for resentencing because we cannot be confident that
8The formula in U.S.S.G. 3D1.4(a) calls for a two- level increase where (as here) there is a second group of closely-related counts whose offense level is as serious as or within 1 to 4 levels less serious than the most serious group.
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the mistake was harmless. See Williams v. United States, 112
S. Ct. 1112, 1121 (1992). Resentencing in this instance
requires no additional evidence and is only a small
administrative burden. Even small adjustments could make a
lot of difference to the defendant. Above all, the great
latitude possessed by the district court in deciding how far
to depart makes it all the more important that the district
judge exercise a fully informed discretion. At least in this
case, we think this information should include the correct
computation of the point of departure.
The use of a single combined offense level in no way
prevents the district judge from imposing a sentence of nine
years on remand. The various grouping rules are used in
determining the guideline sentence range; once the judge
determines to depart from that range, the statutory maximum
is derived by adding up the maximums for each of the counts
on which the defendant was convicted, here five years for
each of ten counts. Cf. U.S.S.G. 5G1.2(d).9 Of course,
no one suggests that a sentence of fifty years would be a
9 "[T]he total punishment" under U.S.S.G. 561.2 is normally determined by the guideline range, see id.,
subsection (b), but where the sentencing court lawfully departs from the guideline range, "the total punishment" is the punishment specified as a result of that departure; and sentences then run consecutively "to the extent necessary to provide a combined sentence equal to the total punishment." See id. subsection (d).
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proper departure, but that is because of the reasonableness
requirement and not on account of the grouping rules.
The grouping rules are one of those chapters in the
Sentencing Guidelines where practical judgments, unexplained
policy choices, and extreme complexity are so fused that even
the most expert of lawyers and judges can be led astray. The
glitches that occurred here cast no reflection on the very
able district judge. Whatever one's conception of the right
sentence in this tragic case, the district court approached
the matter with the care, concern and seriousness that
sentencing issues always deserve.
The sentences are vacated and the case is remanded for
resentencing on the premise that the point of departure is a
combined offense level of 13.
It is so ordered.
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