IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 93-8291
UNITED STATES OF AMERICA, Plaintiff-Appellant,
versus
JOHN DEREK O'BRIEN, Defendant-Appellee.
Appeal from the United States District Court for the Western District of Texas
(March 24, 1994)
Before HIGGINBOTHAM and WIENER, Circuit Judges, and KAUFMAN,* District Judge.
HIGGINBOTHAM, Circuit Judge:
We conclude that John O'Brien's postconviction community
service did not justify a downward departure and remand for
resentencing.
I.
John O'Brien pled guilty in 1990 to charges of conspiracy and
possession with intent to distribute more than fifty marijuana
plants. 21 U.S.C. §§ 841(a)(1) & 846. The probation officer,
based on O'Brien's offense level of 22 and criminal history
category of I, calculated a Guideline sentence of 41 to 51 months
imprisonment, to be followed by three to five years' supervised
* District Judge of the District of Maryland, sitting by designation. release on both of the counts to which O'Brien pled guilty. The
district judge granted a two-level reduction in the offense level
for acceptance of responsibility, lowering the prison term
recommended by the Guidelines to 33 to 41 months.
At O'Brien's 1990 sentencing hearing, the district judge
departed downward from the Guidelines range, imposing a sentence of
12 months imprisonment and five years of supervised release. The
judge offered two reasons: that O'Brien had strong ties to the
community of Austin, Texas, including associations with charitable
groups in the Austin area, and that O'Brien was "basically a
worthwhile person." United States v. O'Brien, 950 F.2d 969, 970-71
(5th Cir. 1991), cert. denied, ___ U.S. ___, 113 S. Ct. 64 (1992).
O'Brien appealed his conviction, advancing a Fourth Amendment
challenge to the trial judge's denial of a motion to suppress. The
government appealed the downward departure. This court affirmed
O'Brien's conviction and vacated O'Brien's sentence, holding that
"the reasons proffered by the district judge were insufficient to
justify a downward departure." O'Brien, 950 F.2d at 970. See also
United States v. Pace, 955 F.2d 270 (5th Cir. 1992).
On remand for resentencing in March of 1993, the trial judge
departed downward even further. Again faced with a Guidelines
range of 33 to 41 months imprisonment, the judge imposed five years
of probation and no term of imprisonment. The judge's first
rationale was the extent of the defendant's community service since
conviction, which included musical performances worldwide,
organizing benefit shows for various social service and charitable
2 organizations, and working in a music program in the Austin public
schools. The judge's second rationale was the "clearly atypical"
nature of the defendant's conduct. The government appeals the
judge's downward departure decision.
II.
The district court erred in departing downward because of
O'Brien's post-conviction community service. O'Brien engaged in
the type of community service that he did because of the skills he
developed as a professional musician. When writing the Guidelines,
the Sentencing Commission considered the effect on sentencing of a
defendant's professional skills and professional record using them.
See U.S.S.G. § 5H1.2 (educational and vocational skills not
ordinarily relevant in determining whether a sentence should be
outside the guidelines); § 5H1.5 (employment record not ordinarily
relevant in determining whether a sentence should be outside the
guidelines).1 The Commission's consideration of these factors
means they were not a permissible ground for departure. 18 U.S.C.
§ 3553(b); U.S.S.G. § 5K2.0.
O'Brien argues that his case does not involve a subjective
guess about his future behavior because he has established a solid
record of achievement in the time since his conviction. We reject
1 To avoid any ex post facto problem with the application of the Guidelines version in effect at O'Brien's resentencing, we rely on the version in effect at the time of his offense. See United States v. Clark, 8 F.3d 839, 844 (D.C. Cir. 1993). We note that effective November 1, 1991 the Guidelines provide that "civic, charitable, or public service . . . good works are not ordinarily relevant in determining whether a sentence should be outside the applicable guideline range." U.S.S.G. § 5H1.11.
3 this argument. A departure decision based on evidence about a
defendant's character, whether it relates to his character before
or after conviction, still tries to predict the defendant's future
behavior based upon his past actions. Such assessments of a
defendant's character are inconsistent with the Guidelines. See,
e.g., O'Brien, 950 F.2d at 971 n.1; United States v. Lara-
Velasquez, 919 F.2d 946, 954 (5th Cir. 1990) (no downward departure
for rehabilitative potential); O'Brien, 950 F.2d at 971; United
States v. Reed, 882 F.2d 147, 151 (5th Cir. 1989) (no downward
departure because of a defendant's "worth" or "good"). See
generally Lara-Velasquez, 919 F.2d at 954; United States v. Mejia-
Orosco, 867 F.2d 216, 218 (5th Cir.), cert. denied, 492 U.S. 924
(1989) (both noting Congress's goal in enacting the Guidelines of
ending sentencing based on subjective predictions about a
defendant's rehabilitative potential).
O'Brien argues that even if the Commission addressed the type
of behavior in which he engaged, it did not anticipate the extent
of his behavior. See 18 U.S.C. § 3553(b); U.S.S.G. § 5K2.0. We
find nothing in this case taking it out of the "`heartland' . . .
of typical cases embodying the conduct that [the] guideline
describes." U.S.S.G. ch. 1 pt. A § 4(b), at 1.6 (Introduction).
O'Brien has talent and the respect of many people, but so do many
professionals who come before the courts for sentencing. We see no
way to take O'Brien's case out of the "heartland" without drawing
subtle distinctions between the way O'Brien used his musical skills
and the way other professionals subject to sentencing have employed
4 their talents. The Guidelines do not envision this kind of
subjective decisionmaking.
III.
The district court also justified its departure because it
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 93-8291
UNITED STATES OF AMERICA, Plaintiff-Appellant,
versus
JOHN DEREK O'BRIEN, Defendant-Appellee.
Appeal from the United States District Court for the Western District of Texas
(March 24, 1994)
Before HIGGINBOTHAM and WIENER, Circuit Judges, and KAUFMAN,* District Judge.
HIGGINBOTHAM, Circuit Judge:
We conclude that John O'Brien's postconviction community
service did not justify a downward departure and remand for
resentencing.
I.
John O'Brien pled guilty in 1990 to charges of conspiracy and
possession with intent to distribute more than fifty marijuana
plants. 21 U.S.C. §§ 841(a)(1) & 846. The probation officer,
based on O'Brien's offense level of 22 and criminal history
category of I, calculated a Guideline sentence of 41 to 51 months
imprisonment, to be followed by three to five years' supervised
* District Judge of the District of Maryland, sitting by designation. release on both of the counts to which O'Brien pled guilty. The
district judge granted a two-level reduction in the offense level
for acceptance of responsibility, lowering the prison term
recommended by the Guidelines to 33 to 41 months.
At O'Brien's 1990 sentencing hearing, the district judge
departed downward from the Guidelines range, imposing a sentence of
12 months imprisonment and five years of supervised release. The
judge offered two reasons: that O'Brien had strong ties to the
community of Austin, Texas, including associations with charitable
groups in the Austin area, and that O'Brien was "basically a
worthwhile person." United States v. O'Brien, 950 F.2d 969, 970-71
(5th Cir. 1991), cert. denied, ___ U.S. ___, 113 S. Ct. 64 (1992).
O'Brien appealed his conviction, advancing a Fourth Amendment
challenge to the trial judge's denial of a motion to suppress. The
government appealed the downward departure. This court affirmed
O'Brien's conviction and vacated O'Brien's sentence, holding that
"the reasons proffered by the district judge were insufficient to
justify a downward departure." O'Brien, 950 F.2d at 970. See also
United States v. Pace, 955 F.2d 270 (5th Cir. 1992).
On remand for resentencing in March of 1993, the trial judge
departed downward even further. Again faced with a Guidelines
range of 33 to 41 months imprisonment, the judge imposed five years
of probation and no term of imprisonment. The judge's first
rationale was the extent of the defendant's community service since
conviction, which included musical performances worldwide,
organizing benefit shows for various social service and charitable
2 organizations, and working in a music program in the Austin public
schools. The judge's second rationale was the "clearly atypical"
nature of the defendant's conduct. The government appeals the
judge's downward departure decision.
II.
The district court erred in departing downward because of
O'Brien's post-conviction community service. O'Brien engaged in
the type of community service that he did because of the skills he
developed as a professional musician. When writing the Guidelines,
the Sentencing Commission considered the effect on sentencing of a
defendant's professional skills and professional record using them.
See U.S.S.G. § 5H1.2 (educational and vocational skills not
ordinarily relevant in determining whether a sentence should be
outside the guidelines); § 5H1.5 (employment record not ordinarily
relevant in determining whether a sentence should be outside the
guidelines).1 The Commission's consideration of these factors
means they were not a permissible ground for departure. 18 U.S.C.
§ 3553(b); U.S.S.G. § 5K2.0.
O'Brien argues that his case does not involve a subjective
guess about his future behavior because he has established a solid
record of achievement in the time since his conviction. We reject
1 To avoid any ex post facto problem with the application of the Guidelines version in effect at O'Brien's resentencing, we rely on the version in effect at the time of his offense. See United States v. Clark, 8 F.3d 839, 844 (D.C. Cir. 1993). We note that effective November 1, 1991 the Guidelines provide that "civic, charitable, or public service . . . good works are not ordinarily relevant in determining whether a sentence should be outside the applicable guideline range." U.S.S.G. § 5H1.11.
3 this argument. A departure decision based on evidence about a
defendant's character, whether it relates to his character before
or after conviction, still tries to predict the defendant's future
behavior based upon his past actions. Such assessments of a
defendant's character are inconsistent with the Guidelines. See,
e.g., O'Brien, 950 F.2d at 971 n.1; United States v. Lara-
Velasquez, 919 F.2d 946, 954 (5th Cir. 1990) (no downward departure
for rehabilitative potential); O'Brien, 950 F.2d at 971; United
States v. Reed, 882 F.2d 147, 151 (5th Cir. 1989) (no downward
departure because of a defendant's "worth" or "good"). See
generally Lara-Velasquez, 919 F.2d at 954; United States v. Mejia-
Orosco, 867 F.2d 216, 218 (5th Cir.), cert. denied, 492 U.S. 924
(1989) (both noting Congress's goal in enacting the Guidelines of
ending sentencing based on subjective predictions about a
defendant's rehabilitative potential).
O'Brien argues that even if the Commission addressed the type
of behavior in which he engaged, it did not anticipate the extent
of his behavior. See 18 U.S.C. § 3553(b); U.S.S.G. § 5K2.0. We
find nothing in this case taking it out of the "`heartland' . . .
of typical cases embodying the conduct that [the] guideline
describes." U.S.S.G. ch. 1 pt. A § 4(b), at 1.6 (Introduction).
O'Brien has talent and the respect of many people, but so do many
professionals who come before the courts for sentencing. We see no
way to take O'Brien's case out of the "heartland" without drawing
subtle distinctions between the way O'Brien used his musical skills
and the way other professionals subject to sentencing have employed
4 their talents. The Guidelines do not envision this kind of
subjective decisionmaking.
III.
The district court also justified its departure because it
viewed O'Brien's criminal activity as "clearly atypical." In an
introductory section of the Guidelines entitled "Probation and
Split Sentences," the Commission states that it "has not dealt with
single acts of aberrant behavior that still may justify probation
at higher offense levels through departures." U.S.S.G. Ch. 1, Pt.
A, intro. cmt. 4(d). This court has stated that "aberrant
behavior" requires more than an act which is merely a first offense
or "out of character" for the defendant, as the Guidelines take
those considerations into account in calculating the defendant's
criminal history category. United States v. Williams, 974 F.2d 25,
26 (5th Cir. 1992). Aberrant behavior "generally contemplates a
spontaneous and seemingly thoughtless act rather than one which was
the result of substantial planning because an act which occurs
suddenly and is not the result of a continued reflective process is
one for which the defendant may be arguably less accountable." Id.
at 26-27 (quoting United States v. Carey, 895 F.2d 318, 325 (7th
Cir. 1990)).
O'Brien's conduct in this case does not qualify as a
"spontaneous and seemingly thoughtless" act. Law enforcement
officers several times witnessed O'Brien at a barn containing 796
growing marijuana plants and on the day they executed the search
warrant O'Brien was found on the property with a key to the
5 entrance gate. A search of O'Brien's residence uncovered ledgers,
accounts, receipts, and $5,665 in cash.
O'Brien draws unpersuasive analogies to two cases from other
circuits. Unlike the defendant in United States v. Russell, 870
F.2d 18 (1st Cir. 1989), and one of the defendants in United States
v. Takai, 941 F.2d 738 (9th Cir. 1991), O'Brien did not withdraw
from his criminal activity until arrested. And unlike the other
defendant found to have engaged in aberrant conduct in Takai,
O'Brien maintained ongoing contact with the enterprise and its
operations. Cf. Takai, 941 F.2d at 743.
IV.
The parties brief the question whether we should reassign this
case to a different judge on remand. Mindful of the fact that this
case has appeared before us twice, we remand to the same judge.
"The district judge will, we are confident, perform his duty. It
is unseemly for us to either assume that he will take a particular
course or to suggest what he should do so long as he reaches his
decision in accordance with the controlling statute." United
States v. Denson, 603 F.2d 1143, 1149 (5th Cir. 1979). There is
much to be said for according district judges the power exercised
in this case. Many critics of the sentencing guidelines would
prefer to do so. But we have no choice but to apply the law as
directed by the Congress.
VACATED AND REMANDED