United States v. Renford George Smith

27 F.3d 649, 307 U.S. App. D.C. 199, 1994 U.S. App. LEXIS 16777, 1994 WL 321513

• Court: Court of Appeals for the D.C. Circuit
• Decided: July 8, 1994
• Docket: 93-3013
• Status: Published

Opinions

Opinion for the Court filed by Circuit Judge WILLIAMS.

Dissenting Opinion filed by Circuit Judge SENTELLE.

STEPHEN F. WILLIAMS, Circuit Judge:

This ease poses the question whether a sentencing court may depart below the range indicated by the Sentencing Guidelines where the defendant, solely because he is a deporta-ble alien, faces the prospect of objectively more severe prison conditions than he would otherwise. We hold such departures permissible.

Renford George Smith, a Jamaican citizen, entered the United States illegally in 1991. The following year he was arrested and charged with unlawful possession of five grams or more of cocaine base with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(l)(B)(iii), and pleaded guilty. The district court sentenced him to 70 months imprisonment, the very bottom of the range indicated by the Sentencing Guidelines. He appeals because the court, though expressing a desire to reduce his sentence, declared, “I really don’t see any basis for departure.”¹ Smith claims such a ground, arguing that in two ways his status as a deportable alien will — adventitiously, as he sees it — subject him to harsher conditions than an otherwise identical citizen. First, his status as a deportable alien renders him almost certainly ineligible for the benefits of 18 U.S.C. § 3624(c), which directs the Bureau of Prisons, to the extent practicable, to assure that prisoners spend part of the last 10% of their sentences (but no more than six months) under conditions — possibly including home confinement — that will “afford the prisoner a reasonable opportunity to adjust to and prepare for his re-entry into the community”. Bureau of Prisons regulations bar non-U.S. citizens from assignment to a Community Corrections Center except in what appear to be rare circumstances. See Federal Bureau of Prisons, Program Statement 5100.04: Security Designation and Custody Classification Manual, Ch. 2-9 (June 15, 1992).² More important, Bureau of Prisons policy prevents him from being assigned to serve any part of his sentence in a minimum security prison, subject to the same exceptions as community confinement. Id. at Ch. 2-9.³ Whether such differences in probable conditions of confinement can ever justify a downward departure presents a threshold question of law that we decide de novo. United States v. Williams, 980 F.2d 1463, 1466 (D.C.Cir.1992).

* * *

Sentencing courts are authorized to make downward departures in order to adjust for “aggravating or mitigating circumstance[s]” not adequately taken into account by the Sentencing Commission in the promulgation of its guidelines:

(b) Application of guidelines in imposing a sentence. The court shall impose a sentence of the kind, and within the range, referred to in subsection (a)(4) 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. In determining whether a circumstance was adequately taken into consideration, the court shall consider only the sentencing guidelines, policy statements, and official commentary of the Sentencing Commission.

18 U.S.C. § 3553(b) (emphasis added).

The first question is whether § 3553(b) reaches offender characteristics not related to culpability, an issue we left open in United States v. Mason, 966 F.2d 1488, 1495-96 (D.C.Cir.1992). We believe that although the controlling statutes are ambiguous on the point, the Sentencing Commission has answered it affirmatively, and that that answer is an entirely reasonable reading of the statutes. See United States v. Doe, 934 F.2d 353, 359 (D.C.Cir.1991) (courts defer to reasonable interpretations by Commission); cf. Williams v. United States, — U.S. -, -, 112 S.Ct. 1112, 1119-20, 117 L.Ed.2d 341 (1992).

There seems no doubt that “aggravating or mitigating circumstances” may encompass characteristics of the offender as well as of the crime. Indeed, Congress directed the Sentencing Commission “to consider whether the following matters, among others, with respect to a defendant, have any relevance” to the appropriate sentence, and then enumerated 11 items, ten of which are offender characteristics such as age, physical condition, family ties, and criminal history. 28 U.S.C. § 994(d).⁴ The Commission has considered the listed items, stating its conclusions as Policy Statements in Chapter 5, Part H, of the Guidelines — “Specific Offender Characteristics”. There the Commission not only authorizes judges to take some of these characteristics into account, but makes plain that they may be a basis for departure even in circumstances where their connection to the sentence has nothing to do with moral blameworthiness.

Most telling are §§ 5H1.1 and' 5H1.4, which suggest home detention as a substitute for imprisonment where, because of extreme age or disability, such detention would be as “efficient” as prison but less costly. In effect these policy statements identify extreme age and disability as characteristics that make it possible to achieve the goals of a prison sentence (incapacitation, retribution, etc.) with an alternative confinement. The Commission accordingly authorized an adjustment of sentence — in type, though not in duration — for reasons having nothing to do with blameworthiness.

The Commission’s treatment of family responsibilities reflects a similar view. Besides including family ties and responsibilities among the matters to be considered under § 994(d), Congress directed the Commission to assure that the guidelines reflect the “general inappropriateness of considering ... family ties and responsibilities”. 28 U.S.C. § 994(e). Nonetheless, the Commission has identified a special situation where the sentencing court should consider them. Policy Statement § 5H1.6 states that “[fjamily responsibilities that are complied with” are relevant to the amount of proper restitution or fines.⁵ Although obviously compliance with family responsibilities is a moral good, the policy does not seem to rest on that point, but rather on the idea that such responsibilities are a genuine burden that a sentencing court should treat somewhat the way it would a lesser income — itself of questionable relation to blameworthiness, yet to be taken into account in choosing fines or restitution, see §§ 5E1.2(a), (d)(2), (d)(3), (f) and (g).

Although the policy statements of Chapter 5, Part H, are not expressly linked to § 3553(b), they appear necessarily to be an interpretation of that section. Part H “addressees] ... the determination of whether a sentence should be outside the applicable guideline range”, see Introductory Commentary to § 5H1 (emphasis added), and § 3553(b) appears to be the only route by which courts may do so.

We see nothing unreasonable in the Commission’s view that “mitigating circumstances” include factors unrelated to moral blameworthiness. In Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), as we noted in Mason, the Supreme Court treated “mitigating” as a very broad term, requiring that juries in death eases be allowed to consider, “as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances .of the offense that the defendant proffers as a basis for a sentence less than death.” Id. at 604, 98 S.Ct. at 2965, quoted in Mason, 966 F.2d at 1495. Further, any effort to draw a line in terms of blameworthiness is not so easy as may first appear. Many of the offense characteristics that the Commission addresses in § 5K2 of the Sentencing Guidelines — entitled “Departures” — are only dimly related to moral blameworthiness. Those that go merely to consequences of the criminal conduct (see § 5K2.1 (death), § 5K2.2 (physical injury), § 5K2.3 (extreme psychological injury), § 5K2.5 (property damage or loss)), as opposed to intention and the conduct itself, seem at best to be classifiable as “moral luck”. See United States v. Martinez, 16 F.3d 202, 206 (7th Cir.1994).

As we noted in Mason, the Second Circuit has understood “mitigating circumstances” to extend beyond degrees of culpability. In United States v. Lara, 905 F.2d 599 (2d Cir.1990), the court found departure permissible because of the defendant’s “potential for victimization” due to his “diminutive size, immature appearance and bisexual orientation.” Id. at 601. It appeared likely that the prison authorities, in order to protect him from sexual exploitation, would subject him to solitary confinement. Id. In Mason we observed that this prospect, while it did not “reduce the defendant’s moral culpability, ... was linked to the retributive purpose of the criminal sanction in that the additional punishment of solitary confinement offset the reduction in his sentence.” 966 F.2d at 1496. n. 7. See also United States v. Tucker, 986 F.2d 278, 280 (8th Cir.1993) (extreme vulnerability can provide a proper predicate for departure, although court concludes that the defendant was not especially prone to victimization); United States v. Long, 977 F.2d 1264, 1277-78 (8th Cir.1992) (government accepts the principle of departure for extreme vulnerability but successfully contests its application).

The Dissent suggests that the Commission’s post-Lara amendment to § 5H1.4, adding “appearance, including physique” to the aspects of physical condition that are “not ordinarily” relevant, represents a disapproval of Lara. Dissent at 660. The Commission’s stated explanation is more limited: “In several cases, courts have departed based upon the defendant’s alleged vulnerability to sexual assault in prison due to youthful appearance and slender physique. This amendment expresses the Commission’s position that such grounds are not ordinarily relevant in determining whether a sentence should be outside the applicable guideline range.” Notice of Proposed Amendments to Sentencing Guidelines, Policy Statements, and Commentary, 56 Fed.Reg. 1846, 1887 (Jan. 17, 1991). This is certainly not an outright disapproval of Lara, for the court there plainly found the case extraordinary, not ordinary, 905 F.2d at 603, and in any event rested not so much on appearance per se as on the “extreme vulnerability” of the particular defendant, id. at 602, manifested through actual prison victimization of such intensity that the authorities planned assignment to solitary confinement for the defendant’s, protection, id. at 602-03. Moreover, the Commission is not diffident about naming eases that it overrules. See, e.g., Notice of Submission to Congress of Amendments to the Sentencing Guidelines, 59 Fed.Reg. 23,608, 23,609 (May 5, 1994) (citing holdings contrary to proposed amendment to Commentary on § 5G1.2); Notice of Final Action Regarding Amendments to Sentencing Guidelines and Policy Statements, 58 Fed.Reg. 52,527, 52,-529-30 (Oct. 8, 1993) (citing cases in disagreement with proposed amendment to application notes on § 3B1.1). So its focus on appearance alone may well be read as simply trying to prevent extension of Lara along that dimension. The Commission certainly did not suggest a principle that a factor cannot b.e a mitigating circumstance unless it bears on moral culpability.

Not only does the Commission appear reasonably to understand “mitigating circumstances” to include matters unconnected to blameworthiness, it has imposed very few categorical limits on what may qualify. The Guidelines state:

Section 5H1.10 (Race, Sex, National Origin, Creed, Religion, and Socio-Economic Status), § 5H1.12 (Lack of Guidance as a Youth and Similar Circumstances), the third sentence of § 5H1.4 (Physical Condition, Including Drug Dependence and Alcohol Abuse), and the last sentence of § 5K2.12 (Coercion and Duress) list several factors that the court cannot take into account as grounds for departure. With those specific exceptions, however, the Commission does not intend to limit the kinds of factors, whether or not mentioned anywhere else in the guidelines, that could constitute grounds for departure in an unusual case.

Guidelines Manual, Ch. 1, Pt. A, § 4(b) (emphasis added). Elsewhere, the Commission states more simply: “If ... a particular ease presents atypical features, the Act allows the court to depart from the guidelines and sentence outside the prescribed range.” Id. § 2.

The government here claims that the bar on consideration of national origin, quoted above and reflecting Congress’s direction that the Commission “assure that the guidelines and policy statements are entirely neutral as to the race, sex, national origin, creed, and socioeconomic status of offenders”, 28 U.S.C. § 994(d), bars a departure for the effect of deportable alien status on the defendant’s prison conditions. But as the court said in United States v. Restrepo, 999 F.2d 640 (2d Cir.1993), “National origin, i.e., having been born in a particular country, however, is not synonymous with ‘alienage,’ i.e., simply not being a citizen of the country in which one is present.” Id. at 644. Nor is deportability limited to all national origins other than U.S., for even a person born a U.S. citizen may be deportable if later denationalized. See 8 U.S.C. §§ 1251-53, 1481.

Although the Restrepo court did not view the statutory bar on consideration of national origin as an obstacle to a departure for de-portable aliens who would suffer more severe confinement on account of their status, it nonetheless found such departures unauthorized. 999 F.2d at 644-46. First, addressing Congress’s direction in § 3624(c) that the Bureau of Prisons to the extent practicable make a special community assignment for the last 10% of a sentence of a prisoner’s term, the court observed that since that provision focuses on reentry into a community, Congress may not have intended it to apply to deportable aliens at all. Id. at 645. We agree. But the Bureau of Prisons has taken a different view, not categorically denying deportable aliens community confinement, but granting the benefit to those who meet the special requirements of Program Statement 5100.4. As the Bureau of Prisons appears simply to limit deportable aliens’ access to community confinement under § 3624(c) in the same way as it limits their access to minimum security facilities generally (i.e., before the last 10% of the sentence), we think that possible offsetting departures for either should be subject to the same analysis.

In a discussion applicable to both, the Res-trepo court offered the following reason for rejecting departures. It noted that Congress had given the Bureau of Prisons broad discretion over assignment of prisoners among correctional facilities, and said that “the court’s disapproval of the Bureau’s exercise of its discretion to deny [a] prisoner reassignment to a minimum-security facility is ... an inappropriate basis for departure.” 999 F.2d at 645-46. Besides characterizing the departure as such a “disapproval”, the court appeared to regard it as an encroachment on the Bureau’s discretion. Id.; see also United States v. Nnanna, 7 F.3d 420, 422 (5th Cir.1993) (citing Restrepo).

We do not see why a downward adjustment by the court, in anticipation of the Bureau’s application of assignment policies, is any more of a disapproval or encroachment than was the departure made in Lara in anticipation of the defendant’s expected assignment to solitary. The Second Circuit there appeared not to question the reasonableness of the prospective assignment. It simply noted that the severity of the defendant’s term would be “exacerbated by his placement in solitary confinement”, Lara, 905 F.2d at 603, so that, as we said in Mason, it could be “offset” by a reduction in sentence. Mason, 966 F.2d at 1496 n. 7.⁶

There is a second aspect to the Bureau’s discretion, however, that gives us pause and suggests to us that the circumstances justifying a downward departure on account of the deportable alien’s severity of confinement may be quite rare. The range of factors that the Bureau may consider in its assignments is almost illimitable, cf. Wolfish v. Levi 573 F.2d 118, 125 (2d Cir.1978) (noting breadth of congressional mandate to Attorney General and inferring that administration of federal prisons is generally “committed to agency discretion by law”), rev’d on other grounds, Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979), and it may be hard for a sentencing court to say whether the fortuity of being a deportable alien is likely to have any independent effect. Partly this is due to the basic complication of assessing any multi-factor decision, see Lon L. Fuller, The Forms and Limits of Adjudication, 92 Harv. L.Rev. 353, 394-404 (1978) (limits of adjudication in the face of “polycentric” problems), especially a decision that will not yet have been made and may in any event never be backed by any formal explanation. Further, if deportable aliens who are ineligible for minimum security facilities are not so very different from U.S. citizens who are typically assigned to higher security institutions, then it might be hard to say that their status alone has caused an increase in severity. The Bureau of Prisons policy on the matter, allowing assignment to a minimum security prison or community corrections center for deportable aliens who have a history of strong family or community ties, of domicile in the U.S. of five years or more, and of stable employment, Program Statement 5100.04: Security Designation and Custody Classification Manual, Ch. 2-9, see note 1 above, suggests that ineligibility stems primarily from the greater likelihood of escape, so that status as a deportable alien is little more than a proxy for factors the Bureau always considers. To put it another way, in trying to assess whether deportable alien status per se will really affect assignment, it may be hard to identify an otherwise identical citizen to serve as a benchmark. On the other hand, if a deportable alien is assigned to a more drastic prison than otherwise solely because his escape would have the extra consequence of defeating his deportation, then the defendant’s status as a deportable alien would have clearly generated increased severity and thus might be the proper subject of a departure. The Bureau of Prisons Program Statement suggests, that this is not normally the case, but we cannot say that deportable alien status will never be an independent cause of a substantial increment in severity.

Further, we do not mean to suggest that a departure is in order whenever a factor unrelated to a prisoner’s just deserts may affect the severity of his confinement. For a departure on such a basis to be reasonable the difference in severity must be substantial and the sentencing court must have a high degree of confidence that it will in fact apply for a substantial portion of the defendant’s sentence. Finally, as the defendant’s status as a deportable alien is by no means necessarily unrelated to his just deserts, even a court confident that the status will lead to worse conditions should depart only when persuaded that the greater severity is undeserved. Thus the court will fulfil the Guidelines’ command that such departures will be “highly infrequent”. U.S.S.G., Ch. 1, Pt. A, § 4(b).

Thus, although we conclude that a downward departure may be appropriate where the defendant’s status as a deportable alien is likely to cause a fortuitous increase in the severity of his sentence, we express no opinion on whether a departure is appropriate here. See United States v. Beckham, 968 F.2d 47, 55 (D.C.Cir.1992) (remand for resen-tencing when district court unaware of authority for downward departure); see also United States v. Hazel, 928 F.2d 420, 424 (D.C.Cir.1991) (sentence within guideline range not reviewable so long as district court made no error of law or mistake of fact) (cf. United States v. Zine, 906 F.2d 776, 778 (D.C.Cir.1990)); United States v. Ogbeide, 911 F.2d 793, 795 (D.C.Cir.1990) (permissible departure reviewable only for reasonableness); see also 18 U.S.C. § 3742(f)(1) & (2).

Accordingly, we reverse and remand for resentencing.

So ordered.

1 . We agree with the dissent that the trial court's finding is ambiguous. See Dissent at 664-65. If the court believed she had authority to depart but that the circumstances did not warrant departure, her statement to that effect will end the proceeding. See United States v. Hazel, 928 F.2d 420, 424 (D.C.Cir.1991).

2 . A deportable alien is automatically ineligible for such benefits unless (1) he meets three qualifications — verified strong family/community ties in the United States, a verified history of domicile in the United States (five or more years), and a verified history of stable employment in the United States, or (2) the Immigration and Naturalization Service determines that deportation proceedings will not be initiated, id., or (3) the Regional Director of the Bureau of Prisons waives the requirement, id. at Ch. 2-6. See also Ch. 7-25-26, Ch. 8-1, and Ch. 2-1.

3 . Before the trial court Smith suggested another claim, which he here expressly abjures, Appellant’s Brief at 9 n. 7, that the prospect of his incarceratión in an Immigration & Naturalization Service detention center between his release and his actual deportation also calls for an adjustment. See United States v. Restrepo, 999 F.2d 640, 646 (2d Cir.1993) (rejecting such a claim); cf. United States v. Soto, 918 F.2d 882, 884-85 (10th Cir.1990).

4 .In full, 28 U.S.C. § 994(d) reads as follows:

(d) The Commission in establishing categories of defendants for use in the guidelines and policy statements governing the imposition of sentences of probation, a fine, or imprisonment, governing the imposition of other authorized sanctions, governing the size of a fine or the length of a term of probation, imprisonment, or supervised release, and governing the conditions of probation, supervised release, or imprisonment, shall consider whether the following matters, among others, with respect to a defendant, have any relevance to the nature, extent, place of service, or other incidents of an appropriate sentence, and shall take them into account only to the extent that they do have relevance—

(1) age;

(2) education;

(3) vocational skills;

(4) mental and emotional condition to the extent that such condition mitigates the defendant’s culpability or to the extent that such condition is otherwise plainly relevant;

(5) physical condition, including drug dependence;

(6) previous employment record;

(7) family ties and responsibilities;

(8) community ties;

(9) role in the offense;

(10) criminal history; and

(11)degree of dependence upon criminal activity for a livelihood.

The Commission shall assure that the guidelines and policy statements are entirely neutral as to the race, sex, national origin, creed, and socioeconomic status of offenders.

5 . Section 5H1.6 appears to be an authorization of a departure, as the Commission set no "guidelines” for the court's incorporation of family responsibilities into the selection of a fine, in sharp contrast to its formula setting specific upper and lower limits for fines in each offense level. U.S.S.G. § 5E1.2(c)(3). Whether trial court consideration of such responsibilities is technically a departure or is in some way part of the "guidelines” sentence, compare Dissent at 661, would seem to make little difference. It is hard to believe that a factor relevant to establishment of a guidelines sentence is not either a mitigating or aggravating circumstance. If so, it may be considered as a basis for departure so long as "not adequately taken into consideration by the Sentencing Commission". 18 U.S.C. § 3553(b).

6 . Restrepo was followed without further explanation in United States v. Mendoza-Lopez, 7 F.3d 1483, 1487 (10th Cir.1993), and in United States v. Nnanna, 7 F.3d 420, 422 (5th Cir.1993). United States v. Alvarez-Cardenas, 902 F.2d 734 (9th Cir.1990), rejected a defendant’s unexplained claim that his ’status as a deportable alien was grounds for a downward departure. In that context, the court indeed observed that the mere fact of deportability did not render his crime serious or speak to his character. Id. at 737. Thus, Larct and its sequelae appear to be the only cases expressly addressing the issue of departures for circumstances that accidentally lead to an increase in the objective severity of the defendant’s conditions of incarceration. Cf. Dissent at 668.