UNITED STATES COURT OF APPEALS UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT FOR THE FIRST CIRCUIT
No. 96-2042
UNITED STATES OF AMERICA,
Appellee,
v.
ALINA PEREZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Robert E. Keeton, U.S. District Judge]
Before
Torruella, Chief Judge,
Aldrich, Senior Circuit Judge,
and Lynch, Circuit Judge.
Lenore Glaser with whom Stern, Shapiro, Weissberg & Garin was on
brief for appellant. Michael J. Pelgro, Assistant United States Attorney, with whom
Donald K. Stern, United States Attorney, was on brief for appellee.
January 23, 1998
ALDRICH, Senior Circuit Judge. Defendant-appellant
Alina Perez, convicted of federal controlled substance
offenses and with a record of prior state controlled
substance offenses, was sentenced as a career offender under
the United States Sentencing Guidelines. She had asked for a
downward departure, and appealed its denial. We remanded for
clarification, and she is now here again, no better off.
Perez's indictment in the District Court for the
District of Massachusetts was on one count of conspiracy to
distribute heroin and four counts of possession and
distribution of heroin in furtherance of the conspiracy, in
violation of 21 U.S.C. 846 and 841(a)(1), respectively.
She pled guilty to the conspiracy charge and to two of the
distribution charges, and nolo contendre to the other two
distribution charges. Because of two prior state controlled
substance felony convictions, she met the career offender
definition of U.S.S.G. 4B1.1 (1995). Achieving career
offender status meant an initial total offense level of
thirty two, an automatic criminal history category of VI, the
highest, and a guideline sentencing range of 151-188 months
after a three point offense level reduction for acceptance of
responsibility.
At her first sentencing hearing, Perez did not
dispute the literal applicability of the career offender
provision, but contended that she was a "small player,"
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outside the heartland of career offender drug cases, because
the amounts of drugs involved in her offenses, and her role
in them, had been small. She accordingly requested a
downward departure under 4A1.3,1 but the court refused. On
appeal, we remanded for clarification of the court's basis,
in light of United States v. Lindia, 82 F.3d 1154 (1st Cir.
1996), which we had recently decided. At resentencing Perez
again requested departure under 4A1.3. In response the
court acknowledged Lindia, but stated that it was limited to
permissible considerations, or "factors," and that smallness
of predicates was an impermissible consideration. In light
of Congressional mandate, whether she was a small player was
1. Adequacy of Criminal History Category (Policy Statement)
. . . . .
There may be cases where the court concludes that a defendant's criminal history category significantly over- represents the seriousness of a defendant's criminal history or the likelihood that the defendant will commit further crimes. An example might include the case of a defendant with two minor misdemeanor convictions close to ten years prior to the instant offense and no other evidence of prior criminal behavior in the intervening period. The court may conclude that the defendant's criminal history was significantly less serious than that of most defendants in the same criminal history category (Category II), and therefore consider a downward departure from the guidelines.
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a "forbidden factor," beyond consideration for a downward
departure. We quote.
A statute, 28 U.S.C. 994(h), mandates that a "career offender" as defined in the statute receive a sentence at or near the maximum term authorized. See 4B1.1, Background. The definition
of controlled substance offense specifies the minimum severity of offense that qualifies as one of the two offenses, that, at minimum, are needed to invoke the Career Offender provision. Thus, the congressional mandate does not speak of the medium-level controlled substance offense as the heartland for determining whether a person is a Career Offender. Instead, the minimum level offense that is sufficient to qualify for meeting the Career Offender test is within the heartland, by statutory mandate.
The court added, as to which there is no complaint,
that it would have granted a departure had it had discretion
to do so. It did, however, once the sentence range had been
calculated without that departure, take the lowest permitted
as the final figure on the ground of Perez's relatively small
role in the offenses. We have two questions: (1) Whether,
if an open matter, the court's construction was sound. (2)
Whether, in light of Lindia, it was open. We answer both
questions in the affirmative.
This court will not overturn a refusal to depart
from the federal Sentencing Guidelines unless the sentencing
court abused its discretion. See Koon v. United States, 116
S. Ct. 2035, 2043 (1996). At the same time, whether
consideration of a given factor is impermissible under any
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circumstances is a question of law, and we need not defer to
the district court's resolution.
We start with 28 U.S.C. 994(h), that requires the
Sentencing Commission to "assure" that the Guidelines produce
sentences for certain three-time ("career") offenders that
are "at or near the maximum term authorized" by statute.2
The Court, recognizing Congress's maximum intent, has held
2. The Commission shall assure that the guidelines specify a sentence to a term of imprisonment at or near the maximum term authorized for categories of defendants in which the defendant as eighteen years old or older and--
(1) has been convicted of a felony that is--
(A) a crime of violence; or
(B) an offense described in section 401 of the C o n t r o l l e d Substances Act (21 U.S.C. 841) . . . ; and
(2) has previously been convicted of two or more prior felonies, each of which is--
(A) a crime of violence; or
(B) an offense described in section 401 of the C o n t r o l l e d Substances Act (21 U.S.C. 841) . . . .
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this to be the term reached after applying any applicable
statutory enhancements. United States v. LaBonte, 117 S. Ct.
1673 (1997) (6-3), rev'g United States v. LaBonte, 70 F.3d
1396 (1st Cir. 1996) (2-1). The Commission implemented
994(h) with Guidelines 4B1.1,3 that computes sentences
for career offenders based on the identical but re-termed
"offense statutory maximum." In our LaBonte decision,
finding broad discretion in the Commission, we upheld a prior
version of 4B1.1's Application Note 2 that excluded
statutory enhancements from the words "offense statutory
maximum." Then, between our decision and its reversal, we
held, broadly, in United States v. Lindia, 82 F.3d 1154,
1164-65 (1st Cir. 1996), that a district court might consider
a career offender's criminal history "unusual," and outside
the "heartland" of career offender cases, and, if so, that
4A1.3 allowed downward departure. We made no review or
analysis of the type of criminal history involved, but simply
noted that this departure turned on whether career offender
treatment inaccurately reflected criminal history within the
3. U.S.S.G. 4B1.1 provides that a defendant is a career offender if (1) the defendant was at least eighteen years old at the time of the instant offense, (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense, and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.
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meaning of 18 U.S.C. 3553(b),4 id. at 1165, viz., whether
a career offender defendant's particular history had been
adequately considered by the Commission in formulating the
Guidelines.
We note, by way of initial observation, at least,
something of a puzzlement: in light of the Congressional
stricture "at or near," how to reconcile Congress's clear
purpose of maximum sentences for three-time violent or drug
offenders, id. at 1164, with allowing adjustments5 or
downward departures by 4A1.3 which might be sizeable? Does
that mean that "at or near" should be broadly construed to
permit substantial reductions when they are applicable? Does
it suggest possible non-recognition of some type or types of
4. 18 U.S.C. 3553(b) provides, in relevant part:
(b) Application of guidelines in imposing a sentence. -- The court shall impose a sentence of the kind, and within the range, [provided by the guidelines] unless 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.
5. The Guidelines specifically authorize application of 3E1.1 (acceptance of responsibility) to career offenders. Whether 3B1.2 (mitigating role in instant offense) also may apply is unsettled. Compare United States v. Beltran, 122
F.3d 1156, 1160 (8th Cir. 1997); United States v. Morales-
Diaz, 925 F.2d 535, 540 (1st Cir. 1991); with United States
v. Williams, 37 F.3d 82, 84 (2d Cir. 1994); United States v.
Alvarez, 914 F.2d 213, 214-15 (10th Cir. 1990).
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adjustments or departures applicable to ordinary defendants?
We find no pertinent legislative history. In LaBonte the
Court remarked, "This statutory phrase unquestionably permits
a certain degree of flexibility for upward and downward
departures and adjustments." 117 S. Ct. at 1678. The word
"certain" was not defined.
Since adjustments and departures could well achieve
a substantial reduction from the maximum authorized term, it
is not surprising that wide variations have developed as to
what is perceived to be within "at or near" and, accordingly,
the degree of flexibility allowed to the courts.6 In our
LaBonte decision alone the majority, stating there must be
some "play in the joints," accepted a sentence 61.4% of what
it thought the applicable statutory maximum, 70 F.3d at 1409-
10, while the dissenter thought even 72.8% would not be
6. See United States v. Novey, 78 F.3d 1483, 1487 n.5 (10th
Cir. 1996) (noting that a sentence 91% of the statutory maximum was "near" but that 73% was not), cert. denied, 117
S. Ct. 2407 (1997); United States v. Moralez, 964 F.2d 677,
683 n. 5 (7th Cir.) (noting that a sentence 83% of the statutory maximum "may well be short of being 'at or near the maximum term authorized'"), cert. denied, 506 U.S. 903
(1992); see generally United States v. Branham, 97 F.3d 835,
846-47 (6th Cir. 1996); United States v. Hernandez, 79 F.3d
584, 598-99 (7th Cir. 1996), cert. denied, 117 S. Ct. 2407
(1997); United States v. Fountain, 83 F.3d 946, 952-53 (8th
Cir. 1996), cert. denied, 117 S. Ct. 2412 (1997); United
States v. Gardner, 18 F.3d 1200, 1202 (5th Cir.), cert.
denied, 513 U.S. 879 (1994); United States v. Norflett, 922
F.2d 50, 53 n. 4 (1st Cir. 1990); United States v. Hays, 899
F.2d 515, 520-21 (6th Cir.) (Merritt, C.J., dissenting), cert. denied, 498 U.S. 958 (1990); United States v. Alves,
873 F.2d 495, 498 (1st Cir. 1989).
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"near." Id. at 1418. In the present case the district
court, supra, even while excluding smallness of predicates as
a ground for departure, ended by imposing a sentence 63% of
the maximum authorized by giving Perez the benefit of
accepting responsibility.7 Had it been free to depart
downward because of the smallness of the offenses, the court
indicated that it would have sentenced Perez to a mere 21
months (9%), within the range applicable without 4B1.1.
This extended recital, if it does nothing else,
reveals a picture that supports the conclusion that the
Commission, commanded to "assure" that the Guidelines produce
near maximum sentences for the statutorily defined category
of recidivists, did not want to leave open to the courts a
departure from the statutory figure based on the size of the
offenses. We believe it made this clear by adopting a
single, broad definition of "felony."8 Second, it adopted a
single criminal history category rather than a sliding scale
based on the seriousness of the past offenses. Compare
7. The applicable statutory maximum was 20 years (240 months). Under the Guidelines, Perez's applicable sentencing range initially was 210-262 months. Crediting her for accepting responsibility brought her applicable range to 151- 188 months. The court then, within its discretion, chose the low end, 151 months, 63% of 240 months, for the recognized small role in the offenses.
8. We note that "felony" for 4B1.1 purposes includes both large and small offenses. See 4B1.2, Commentary (defining
felony as an "offense punishable by death or imprisonment for a term exceeding one year.").
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4B1.1 (assigning criminal history category VI to "every"
career offender "case"), with 4A1.1 and Ch. 5, pt. A,
Sentencing Table (determining criminal history category for
non-career offenders by the number of accumulated criminal
history points). With such deliberate uniformity, how is a
court suddenly to determine, at the low end when all other
degrees of seriousness had been treated equally, special
terms for one group? And on what basis?9 For ordinary
offenders, where there is a sliding point scale, the curve
may be thought to continue. Here there is no curve at all.
Perhaps the best answer to defendant's claim lies
in the district court's proffered alternative: removing her
from the career offender category entirely. Thus if downward
departure was possible based on the smallness of the
offenses, we would have a provision -- whose sole purpose is
special, substantially increased sentences for repeat
offenders that meet a specific description -- completely read
out of the Guidelines by a judicial finding that the
Commission could not really have intended to include what it
said it did. This cannot be the purpose of downward
departures. Rather, we hold that every offender whose
offenses meet the statutory career offender definition is
9. To put this in mathematical terms, suppose a court rates seriousness of the offense at 1-20. On what basis can it determine that number 1 was unusual, and that the Commission had not thought of it, and that if it had thought it would not have applied the even treatment it gave 2-20?
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within the intended heartland, and departure is available
only for those personally, and not by the size of the
offenses, demonstrating an absence of recidivist
tendencies.10
This conclusion accords with the statutory purpose.
To speak the obvious, the unique feature of the career
offender provision is its focus on recidivism. To return to
Labonte, 117 S. Ct. at 1677, "Congress has expressly provided
enhanced maximum penalties for certain categories of repeat
offenders in an effort to treat them more harshly than other
offenders." Congress itself defined the felonious conduct
whose repetition, reflecting habituality and/or
10. We have no quarrel with the principle that there may be downward departures because of individual circumstances in literal career offender cases that indicate the absence of recidivism. Cf. United States v. Collins, 122 F.3d 1297,
1306-07 (10th Cir. 1997) (age and infirmity of defendant, and fact that one predicate conviction was close to ten years prior to the instant offense); United States v. Fletcher, 15
F.3d 553, 557 (6th Cir. 1994) (combination of defendant's extraordinary family responsibilities, the age of his predicates, the time intervening between the predicates, and his attempts to deal with drug and alcohol problems); United
States v. Shoupe, 988 F.2d 440, 447 (3d Cir. 1993)
(defendant's age and immaturity at time of predicates, temporal proximity of predicates, and fact that predicates occurred nearly fifteen years before the instant offense); United States v. Clark, 8 F.3d 839, 845 (D.C. Cir. 1993)
(exposure to domestic violence and childhood abuse that "significantly affected [defendant's] predisposition to commit his first two crimes"); United States v. Bowser, 941
F.2d 1019, 1024-25 (10th Cir. 1991) (defendant's young age at the time of his predicates, close temporal proximity of the predicates, and fact that defendant had been punished concurrently for the predicates); United States v. Lawrence,
916 F.2d 553, 554 (9th Cir. 1990) (psychiatrist's testimony that likelihood of recidivism was low).
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incorrigibility, demands stiff punishment. When, in another
circumstance, the Commission took a lower maximum, and we
approved it in LaBonte, the Court reversed. Here we do not
think that the Commission even intended differentiation to be
possible.
It is true that some courts have, in part, allowed
consideration of the "minor nature" of the past offenses, but
none has adequately established a connection with
recidivism.11
There remains the question whether it is open to us
to make this decision. Clearly we are not foreclosed by
Koon, a non-career offender case, whose general discussion
relates to matters not fully considered by the Commission.
Koon does not advise us as to what factors meet that
definition in a career offender case. We are more concerned
with our decision in Lindia, 82 F.3d at 1165, where we said,
speaking generally, that a sentencing court might depart
downward on the basis of a career offender's criminal history
if it considered it "unusual":
When faced with a departure motion in a career-offender case, as in other cases, the court's experience and unique perspective will allow it to decide if the case before it falls outside the guideline's "heartland," warranting departure.
11. See United States v. Spencer, 25 F.3d 1105, 1113 (D.C.
Cir. 1994); United States v. Smith, 909 F.2d 1164, 1169 (8th
Cir. 1990), cert. denied, 498 U.S. 1032 (1991).
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We believe our decision in Lindia did not rule it was open to
a court to find smallness of offenses to make a career
offender's case unusual, or go so far as to foreclose our
holding that some parts of criminal history have been fully
considered by the Commission. If it be felt that our
unpublished memorandum order on remand here12 could be read
as saying the opposite, it is not the law of the case, and we
may reconsider.
Affirmed.
- Dissenting opinion follows -
12. In view of our recent opinion clarifying that a sentencing court "may invoke 4A1.3 to depart downward from the career offender category if it concludes that the category inaccurately reflects the defendant's actual criminal history," United States v. Lindia, No.
95-2200, slip op. at 21 (1st Cir. April 18, 1996), together with our uncertainty whether the district court made a discretionary decision not to depart or, instead, viewed its authority as more restricted than Lindia allows, we vacate
the sentence and remand for further consideration.
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LYNCH, Circuit Judge, dissenting. With respect for LYNCH, Circuit Judge, dissenting.
the views of my colleagues, I am compelled to dissent. In my
mind, the majority opinion misreads the controlling statute
and the United States Sentencing Guidelines, and is contrary
to the precedent of the Supreme Court, this court, and the
decisions of each of the other circuit courts which have
considered the issue. Our holding in United States v.
Lindia, 82 F.3d 1154 (1st Cir. 1996) directly controls this
case, as does the Supreme Court's holding in Koon v. United
States, 116 S. Ct. 2035 (1996), and those cases require
reversal.
The sole issue to be decided is whether departures
under U.S.S.G. 4A1.3 are categorically prohibited for
defendants classified as career offenders under U.S.S.G.
4B1.1 when the defendant's prior criminal record may over- or
understate the seriousness of the offenses and the district
court could find that this defendant was not in the heartland
of career offenders.13 The district court concluded that
13. The career offender provisions are triggered by two prior convictions. The quantities of drugs and Alina Perez's role in the prior offenses are documented in the record of the district court. Ms. Perez, a heroin addict, sold drugs for $60 to an undercover police officer in 1987, and pled guilty to distribution of heroin and cocaine in 1988. In 1991, Ms. Perez was arrested for distribution of cocaine. In fairness to the government, it should be noted that there were three other state court drug convictions which the defendant successfully vacated before her federal sentencing. In addition, after her federal sentence, she pled guilty to another state cocaine distribution charge and received a five
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such a categorical prohibition deprived it of discretion to
consider whether Perez's criminal history category overstated
the seriousness of her prior crimes and therefore whether
Perez could receive a downward departure. The district court
decided that it had no discretion to depart, but said that,
if it were permitted, it would have granted a downward
departure.14 On this question of law, the district court was
in error; it was not forbidden from considering whether
defendant's offenses fall within the heartland or were
atypical.
Offenders, such as defendant Perez, who have two
prior felony convictions for controlled substance offenses
are automatically placed in criminal history category VI (the
highest criminal history category) and assigned an offense
level determined by the "offense statutory maximum" under
year sentence concurrent with her federal sentence. In this federal offense, Perez was arrested for possession of 13.641 grams of heroin. Without the application of the career offender guidelines, her sentencing range would have been 18 to 24 months. Because she was a career offender, her sentencing range jumped to 151 to 188 months.
14. It is settled law that great deference is accorded to a district court's determination that a case falls outside of the heartland. When, as in this case, the district court decides that a case is so unusual that a departure is warranted, deference is owed to its "special competence" in deciding whether the case before it is a heartland case. See, e.g., Koon, 116 S. Ct. at 2046-47; Lindia, 82 F.3d at
1165; United States v. Rodriguez-Cardona, 924 F.2d 1148, 1157
(1st Cir. 1991). The majority's concerns about "special treatment for one group" are misplaced. Every departure raises the same difficult issue of separating an unusual case from ordinary cases.
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U.S.S.G. 4B1.1. The Guidelines sentencing table mandates a
sentencing range (in this case 151 to 188 months) where the
defendant's criminal history category and offense level
intersect. Section 4A1.3 allows a sentencing court to grant
a departure from the sentencing range mandated by the
Guidelines when the "defendant's criminal history [is]
significantly less serious than that of most defendants in
the same criminal history category . . . ."
The majority concludes that departures under
4A1.3 based on an offender's criminal history are
categorically forbidden for career offenders. This
conclusion derives from the majority's misreading of 28
U.S.C. 994(h). The majority's conclusion depends upon its
assertion that 994(h) requires the Sentencing Commission to
"produce" sentences for three-time ("career") offenders that
are "at or near the maximum term authorized" by statute.
That assertion is not correct. What the statute actually
says is: "The Commission shall assure that the guidelines
specify a sentence to a term of imprisonment at or near the
maximum term authorized for [career offenders]." 28 U.S.C.
994(h) (emphasis added).
The Guidelines do indeed specify such sentences at
or near the maximum for career offenders in U.S.S.G. 4B1.1.
But nothing in 994(h) requires that every offender who
falls under the Guidelines provisions for career offenders
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receive the maximum sentence. The Guidelines were designed
to allow for departures when appropriate, and departures are
permissible in exceptional cases. See Lindia, 82 F.3d at
1165 ("Section 994(h), however, is directed to the
Commission's duty to formulate guidelines pertaining to
categories of defendants, not to sentencing courts faced with
individual defendants."); United States v. Novey, 78 F.3d
1483, 1489 (10th Cir. 1996) ("Section 994(h) does not mandate
that each individual defendant receive a sentence 'at or near
the maximum term authorized.' Rather, the statute directs
the Commission to assure that the guidelines specify such a
term for 'categories of defendants' in which the defendant is
a recidivist violent felon or drug offender.").
Because of the misreading by the majority, it is
important to clarify the proper method for determining
whether a departure is warranted under U.S.S.G. 4A1.3.
Section 4A1.3 is concerned with the accuracy of the
defendant's criminal history category. Under U.S.S.G.
4A1.3, the point of reference for departures is a comparison
with the other offenders in the defendant's criminal history
category. The proper departure inquiry in this case is to
compare the defendant to the "typical" or "heartland"
criminal history category VI offender. As 4A1.3 says:
There may be cases where the court concludes that a defendant's criminal history category significantly over-represents the seriousness of a defendant's criminal history or the
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likelihood that the defendant will commit further crimes. . . . The court may conclude that the defendant's criminal
history was significantly less serious than
that of most defendants in the same criminal
history category . . . and therefore consider
a downward departure from the guidelines.
U.S.S.G. 4A1.3 (emphasis added)
The question is not whether the previous offenses
were "small" but rather whether the offender's criminal history
is so "significantly less serious" than that of the heartland
criminal history category VI offender (not just other career
offenders) that a departure is warranted. Cf. United States v.
Reyes, 8 F.3d 1379, 1384 (9th Cir. 1993) (proper comparison is
with other offenders).
In addition to its misreading of the controlling
statute, the majority ignores the plain language of U.S.S.G.
4A1.3. Section 4A1.3 repeatedly states that a departure may be
granted if "the criminal history category does not reflect the
seriousness of the defendant's past criminal conduct or the
likelihood that the defendant will commit other crimes."
(emphasis added). The Guideline's use of the word "or" instead
of "and" is telling. Under 4A1.3, a defendant's "past criminal
conduct" may alone justify a departure, apart from his likelihood
of recidivism. The majority's attempt to distinguish the
overwhelming precedent contrary to its decision on the grounds
that these other cases did not establish a connection with
recidivism is contrary to the plain meaning of 4A1.3. In any
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event, an offender's criminal past is an excellent (perhaps the
best) predictor of his likelihood of recidivism.
Nor does the majority consider that upward departures
from criminal history category VI are explicitly endorsed by
4A1.3, based on "the nature of the prior offenses." This court
has routinely approved such upward departures for repeat
offenders based on their prior bad acts. See, e.g., United
States v. Black, 78 F.3d 1, 8 (1st Cir. 1996); United States v.
Parkinson, 44 F.3d 6, 10 (1st Cir. 1994). Under the majority
opinion, 4A1.3 becomes a one-way rachet; upward departures may
be granted based on prior offenses, but not downward departures.
The plain language of 4A1.3 demonstrates that, except for the
specific exception of criminal history category I offenders, both
upward and downward departures are contemplated. Neither
Congress nor the Sentencing Commission intended such a lack of
even-handedness.
In addition to misreading the controlling statute and
the language of the Guidelines, the majority also misinterprets
controlling precedent. The majority incorrectly implies that the
Supreme Court's recent decision in United States v. LaBonte, 117
S. Ct. 1673 (1997) undercuts our holding in Lindia that a
sentencing court may grant a career offender a downward departure
if the court concludes that the guideline career offender
criminal history category inaccurately reflects the defendant's
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criminal history. LaBonte has little bearing on the issue to be
decided in this case.
LaBonte addresses the offense level axis of the
sentencing table, not the criminal history category axis. The
issue in LaBonte was not departures but the meaning of the phrase
"offense statutory maximum" for purposes of computing an
offender's offense level. The Court was asked to decide
"whether, by 'maximum term authorized,' Congress meant (1) the
maximum term available for the offense of conviction including
any applicable statutory sentencing enhancements, . . . or (2)
the maximum term available without such enhancements . . . ."
LaBonte, 117 S. Ct. at 1675.
LaBonte concerned the structure of the Guidelines and
determined that, in order to assure that the "guidelines specify
a sentence to a term of imprisonment at or near the maximum term
authorized for [career offenders]" as mandated by 28 U.S.C.
994(h), the phrase "maximum term authorized" must "include all
applicable statutory sentencing enhancements." LaBonte, 117 S.
Ct. at 1675. LaBonte does not, however, foreclose the
possibility of departures for unusual career offenders who fall
outside the heartland.
Indeed, LaBonte cuts against the majority's holding.
In LaBonte, the Supreme Court remarked that 994(h)
"unquestionably permits a certain degree of flexibility for . . .
downward departures . . . ." LaBonte, 117 S. Ct. at 1678. But
-20- 20
the Court was careful to point out that the "pertinent issue" in
the case was "'not how close the sentence must be to the
statutory maximum, but to which statutory maximum it must be
close.'" Id. at 1678 (quoting United States v. Fountain, 83 F.3d
946, 952 (8th Cir. 1996)). LaBonte's reference to departures is
perhaps dicta, but this dicta further demonstrates that the
majority misinterprets the case.
This court has already decided the issue, in Lindia,
against the majority position. This court decided in Lindia that
"a sentencing court may invoke 4A1.3 to depart downward from
the career-offender category if it concludes that the category
inaccurately reflects the defendant's actual criminal history . .
. ." Lindia, 82 F.3d at 1165. Lindia addressed precisely the
issue we face in this case. Lindia noted that our circuit has
long recognized that when a case falls outside the applicable
guideline's heartland, a departure may be warranted. Id. at
1164. Lindia recognized that there were some factors that had
been "explicitly rejected as permissible grounds for departure"
but held that the Commission had "not designated as a 'forbidden
departure' the overrepresentation of a criminal history category
in career offender cases." Id. at 1164-65.
Lindia's holding is consistent with the holdings of
each of the other circuit courts that have considered this issue,
both before and after Lindia was decided. See, e.g., United
States v. Collins, 122 F.3d 1297, 1304 (10th Cir. 1997) ("[F]or a
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defendant who technically qualifies as a career offender but
whose criminal history and likelihood of recidivism significantly
differ from the heartland of career offenders, the sentencing
court may consider a departure from the career offender
category."); United States v. Spencer, 25 F.3d 1105, 1113 (D.C.
Cir. 1994); United States v. Fletcher, 15 F.3d 553, 557 (6th Cir.
1994); Reyes, 8 F.3d at 1383-84; United States v. Shoupe, 988
F.2d 440, 447 (3d Cir. 1993); United States v. Rogers, 972 F.2d
489, 493-94 (2d Cir. 1992); United States v. Beckham, 968 F.2d
47, 54 (D.C. Cir. 1992) (agreeing with "the unanimous judgment of
the other circuit courts to have considered the issue that
4A1.3 authorizes a downward departure when criminal history
category VI, assigned pursuant to the career offender guideline,
significantly overrepresents the seriousness of a defendant's
past criminal conduct and the likelihood of recidivism") (citing
cases); United States v. Lawrence, 916 F.2d 553, 554-55 (9th Cir.
1990); United States v. Brown, 903 F.2d 540, 545 (8th Cir. 1990).
In both Spencer and Reyes, our sister circuits held specifically
that departures for career offenders are permissible under
4A1.3 when the defendant's predicate offenses were relatively
minor.
The majority opinion is also directly contrary to the
Supreme Court's holding in Koon, and to the intent of Congress as
interpreted by Koon. Koon explained that "a federal court's
examination of whether a factor can ever be an appropriate basis
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for departure is limited to determining whether the Commission
has proscribed, as a categorical matter, consideration of the
factor. If the answer to the question is no . . . the sentencing
court must determine whether the factor, as occurring in the
particular circumstances, takes the case outside the heartland of
the applicable Guideline." Koon, 116 S. Ct. at 2051. Thus if a
factor is not expressly forbidden, it may at least in the
exceptional case serve as the basis for a departure. Koon
explicitly states that "for the courts to conclude a factor
[other than an explicitly forbidden factor such as race] must not
be considered under any circumstances would be to transgress the
policymaking authority vested in the Commission." Id. at 2050.
In Koon the Supreme Court expressly held that only a
few reasons for departure are entirely prohibited under the
Guidelines, as the Guidelines do not limit the kinds of factors,
whether or not mentioned anywhere else in the Guidelines, that
could constitute grounds for departure in an unusual case. The
only departure factors entirely forbidden by the Guidelines are:
race, sex, national origin, creed, religion and socioeconomic
status, see U.S.S.G. 5H1.10, lack of guidance as a youth, see
U.S.S.G. 5H1.12, drug or alcohol dependence, see U.S.S.G.
5H1.4, and economic duress, see 5K2.12. In contrast,
departures for atypical criminal history, far from being a
forbidden factor, are specifically encouraged under U.S.S.G.
4A1.3. See Collins, 122 F.3d at 1304 ("Because section 4A1.3
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provides an encouraged basis for departure not already taken into
account by the Commission, over-representation of a defendant's
criminal history or likelihood for recidivism always will be an
approved ground for departure."); Lindia, 82 F.3d at 1165.
The majority holds that, because the defendant's
prior drug felonies are the reason she is categorized as a career
offender, her prior crimes were already "adequately taken into
account by the Sentencing Commission in formulating the
guidelines," U.S.S.G. 5K2.0, and could not therefore serve as
the basis of a departure. Koon explicitly addressed this issue,
and decided that if a Guideline already takes a certain factor
into account, then the factor must be present to an "exceptional
degree" before a departure may be granted. But Koon, contrary to
the reasoning employed by the majority, did not rule out such
departures entirely. Under Koon, if an encouraged factor (e.g.,
criminal history under 4A1.3) is already taken into account by
a Guideline (as is criminal history in the career offender
guideline), "the court should depart only if the factor is
present to an exceptional degree or in some other way makes the
case different from the ordinary case where the factor is
present." Koon, 116 S. Ct. at 2045. See also Lindia, 82 F.3d at
1164-65; United States v. Rivera, 994 F.2d 942, 947-49 (1st Cir.
1993). Under Koon, the majority's holding that departures under
4A1.3 for career offenders are precluded by implication is
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incorrect. Departures for career offenders under 4A1.3 should
be extremely rare, but it is wrong to forbid them entirely.
Koon's holding that only expressly forbidden
departure factors may never serve as the basis for a departure
has been, until today, regularly followed by this court, and thus
the majority's position is in conflict with other of our
precedent. See, e.g., United States v. Brewster, 127 F.3d 22, 26
(1st Cir. 1997) (noting that it is a "fundamental principle of
departure jurisprudence: that, in the absence of an explicit
proscription, courts generally should not reject categorically
any factor as a potential departure predicate"); United States v.
Clase-Espinal, 115 F.3d 1054, 1060 (1st Cir. 1997) (noting Koon's
instruction that "with few exceptions, departure factors should
not be ruled out on a categorical basis"); United States v.
Hardy, 99 F.3d 1242, 1249 (1st Cir. 1996) (stating that "a
departure criterion cannot be deemed impermissible in all
circumstances unless categorically foreclosed by the
Commission"). In Brewster, the court said that a "fundamental
lesson" of prior First Circuit caselaw is "'that a court should
not infer from inexplicit Guidelines language, or from language
that authorizes use of a particular factor in some cases, an
absolute barrier in principle against using certain other factors
as grounds for departure in other unusual circumstances.'" 127
F.3d at 27 (quoting United States v. Doe, 18 F.3d 41, 47 (1st
Cir. 1994)).
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In United States v. Olbres, 99 F.3d 28 (1st Cir.
1996), this court interpreted Koon as dictating that even a
discouraged factor such as a defendant's vocational skills is not
categorically prohibited as a basis for a departure. See id. at
34-35 ("Categorical interpretations 'would nullify the
Commission's treatment of particular departure factors and its
determination that, with few exceptions, departure factors should
not be ruled out on a categorical basis.' . . . [E]ven if the
present case merely concerned vocational skills, a per se
approach would be inappropriate and the district court would
still have to consider whether the case was in some way
'different from the ordinary case where the factor is present.'")
(quoting Koon, 116 S. Ct. at 2045, 2051). In contrast to
vocational skills, departures under 4A1.3 for an
overrepresentative criminal history category are specifically
encouraged under the Guidelines. As Olbres and a host of our
other opinions point out, Koon rejected categorical denials of
departures based on all but a few explicitly forbidden factors,
such as sex and race.
Departures under 4A1.3 for career offenders based
on the nature of the defendant's involvement and the quantity of
drugs in the prior offenses are not categorically foreclosed.
The majority opinion effectively overrules Lindia, something a
subsequent panel does not have the power to do. See United
States v. Graciani, 61 F.3d 70, 75 (1st Cir. 1995); Williams v.
-26- 26
Ashland Eng'g Co., 45 F.3d 588, 592 (1st Cir. 1995). Lindia is
directly on point, and has not been undercut by the controlling
authority of LaBonte. Cf. Stella v. Kelley, 63 F.3d 71, 74 (1st
Cir. 1995).
The majority compounds its error by clouding its
holding with a distinction based on the "type" of criminal
history involved. The suggested distinction between "personal"
versus "offense" criminal history is a distinction without a
difference. An offender's criminal history category is computed
based on that person's prior criminal acts, i.e., the offenses
the person committed. The offenses in which the defendant
participated define an offender's criminal history.
Our role is limited to deciding an issue of law:
whether a departure based on the character of the defendant's
prior offenses is ever permissible for career offenders. In
accordance with Koon, our precedent, and the precedent of our
sister circuits, I would answer this question in the affirmative.
The Supreme Court in Koon has committed, in the first instance,
the decision whether to exercise this discretion to grant
allowable departures to the district court. See Koon, 116 S. Ct.
at 2046-47.
I would reverse the district court and remand the
case for resentencing.
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