United States v. Rogelio Lara, Carlos Morales, Francisco Delgado, Carlos Morales

905 F.2d 599, 1990 U.S. App. LEXIS 8872

• Court: Court of Appeals for the Second Circuit
• Decided: May 30, 1990
• Docket: 185, Docket 89-1210
• Status: Published

Opinions

CARDAMONE, Circuit Judge: ■

The government appeals from a judgment of the United States District Court for the Eastern District of New York (Glas-ser, J.) entered on April 11, 1989, resen-tencing appellee Carlos Morales to a term which downwardly departed from the Sentencing Guidelines range pursuant to 18 U.S.C. § 3553(b) (1988).

I BACKGROUND

The facts of this case are straightforward. Defendant-appellee Morales was found guilty at a non-jury trial of conspiracy to possess and possession of cocaine with intent to distribute in violation of 21 U.S.C. §§ 841, 846 (1988), based upon evidence that he and two co-defendants supplied approximately seven kilograms of high-purity cocaine to government agents in three separate transactions in the fall of 1987. The district court sentenced Morales, without reference to the Sentencing Guidelines, to the statute’s mandatory minimum sentence of five years to be followed by concurrent terms of three years of supervised release, and a one-hundred dollar special assessment. The government appealed this sentence following the Supreme Court’s ruling in United States v. Mistretta, 488 U.S. 361, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989), that the Sentencing Guidelines are constitutional, and we remanded the case for resentencing in accordance with the Guidelines in an unpublished order filed on March 23, 1989. See United States v. Morales, Docket No. 88-1233 (2d Cir. Mar. 23, 1989).

At resentencing defense counsel sought, pursuant to 18 U.S.C. § 3553(b), a downward departure from the Guidelines’ range of 121 to 151 months, premised upon a mitigating factor that counsel contended had not adequately been considered by the Sentencing Commission. That factor is the “potential for victimization.” Principally, defense counsel argued that the defendant was a “delicate looking young man ... [with] a certain sweetness about him,” who had been victimized as a consequence of his diminutive size, immature appearance and bisexual orientation. Defense counsel claimed at the resentencing proceedings that while incarcerated an incident occurred in which “two tough male ... inmates were attempting to coerce defendant by threats into becoming a male prostitute ... for their economic gain and ... enjoyment.” The head of the jail unit responded to this event by placing Morales in solitary confinement — also known as “the hole.”

The government argued that these circumstances — assuming the alleged incident actually occurred — were not a valid basis for a downward departure under part H of chapter 5 of the Guidelines Manual. In addition, it contended that Morales could find relief from possible prison victimization through administrative remedies or a habeas petition. The sentencing court rejected these arguments and downwardly departed under § 3553(b). In explanation, Judge Glasser stated

Although this defendant is chronologically 22 years old, he looks 16. Not only does he look 16 but he couldn’t add to very much what his attorney said. He looks 16. The presentence report reflects an admitted bisexuality.

This defendant is, and I knew it at the time that I sentenced him, peculiarly vulnerable and were it not for the mandatory minimum sentence which Congress required me to impose, I wouldn’t have imposed that at the time.

... [The guidelines range would result in] a sentence which is unduly severe relative to most other defendants in this Court who do not have the vulnerability, the appearance, the sexual orientation that this defendant presents.

... [The guidelines sentence] I would regard as being nothing less than draconian, and ... I’m familiar with administrative procedures and writs of habeas corpus.

They would provide this defendant with little solace.

It is from this sentence that the government appeals. We affirm.

II DISCUSSION

Congress promulgated the Sentencing Guidelines to avoid “unwarranted sentencing disparities among defendants.” 28 U.S.C. § 991(b)(1)(B) (1982 & Supp. V 1987). In attempting to eliminate disparity Congress enumerated factors the sentencing judge should consider in determining the appropriate sentencing range. See 18 U.S.C. § 3553(a) (1988). It recognized that there would be circumstances in which departure from the Guidelines’ range would be necessary, and granted statutory authority to depart from the Guidelines’ range when “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_” Id. § 3553(b).

The Commission did not provide a comprehensive list of those factors a sentencing judge should consider in departing from the applicable Guidelines’ range, listing instead only a few specific factors, see, e.g., United States Sentencing Commission Guidelines, §§ 5K2.1-.15, p.s. at 5.43-.47 (1989), (U.S.S.G.), leaving the application of other factors to the discretion of the sentencing judge, id. § 5K2.0, p.s. at 5.42-43. The Commission also designated several factors that it deemed would not be “ordinarily relevant” in imposing sentence. See, e.g., id. §§ 5H1.1-.6, p.s. at 5.35-.36.

The government has raised several arguments in urging reversal of the sentence. It contends that extreme vulnerability of criminal defendants is not a factor permitting departure under § 3553(b), that the district court improperly relied upon factors the Commission designated as not “ordinarily” relevant at sentencing, that the court’s basis of departure contravenes the sentencing philosophy adopted by Congress in enacting the Guidelines, and that the district court circumvented available administrative remedies in attempting to ameliorate the conditions of incarceration. None of these contentions warrant reversal.

Before discussing these arguments, we address as a preliminary matter the government’s assertion that the language “of a kind, or to a degree” in § 3553(b) should not be applied to Morales because this language was added by Congress subsequent to his commission of the present crime. Congress has indicated that we should apply the guidelines and policy statements issued by the Sentencing Commission that are in effect at the time of sentencing, not those extant at the time of the commission of the crime. See 18 U.S.C. § 3553(a)(4), (5) (1988). Thus, the language “of a kind, or to a degree” should be applied to Morales.

A. Appellate Review

In reviewing district court decisions under the Guidelines, we apply de novo review to decisions on issues of law and the clearly erroneous standard to findings of fact. See United States v. Stroud, 893 F.2d 504, 506-07 (2d Cir.1990); cf. United States v. Irabor, 894 F.2d 554, 555 (2d Cir.1990). We review de novo the district court’s determination that extreme vulnerability of criminal defendants was not considered by the Sentencing Commission “of a kind, or to a degree” as was found here. See United States v. Summers, 893 F.2d 63, 66 (4th Cir.1990); United States v. Aguilar-Pena, 887 F.2d 347, 350 (1st Cir.1989); United States v. Uca, 867 F.2d 783, 786 (3d Cir.1989). The dissent asserts that the Commission considered the propensity of criminal defendants to physical attack in prison when it formulated the Guidelines. Although we agree with that assertion as a general proposition, it is plain that the Commission did not consider vulnerability to the extent revealed in this record — where the only means for prison officials to protect Morales was to place him in solitary confinement. Hence, the peculiar vulnerability found by the district court was a circumstance not taken into account by the Commission.

Further, we review the district court’s factual determination that such extreme vulnerability was present under the clearly erroneous standard of 18 U.S.C. § 3742(e), deferring to the district court’s findings because it is in the best position to observe the defendant’s demeanor and characteristics. See Summers, 893 F.2d at 67. We cannot say that the description of Morales’ appearance and demeanor as found by the sentencing court was clearly erroneous.

Because extreme vulnerability of a criminal defendant is a proper ground for departure under § 3553(b), the district court has “sensible flexibility” to depart under circumstances where such action is not unreasonable. See United States v. Palta, 880 F.2d 636, 639 (2d Cir.1989); accord United States v. Correa-Vargas, 860 F.2d 35, 40 (2d Cir.1988).

B. § 5H1 Factors

The government first asserts that the district court relied upon the factors of age, mental and emotional condition, and physical condition that the Commission explicitly designated as “ordinarily” not relevant in imposing sentence. See U.S.S.G. §§ 5H1.1, 5H1.3, 5H1.4, p.s. at 5.35-.36. We do not think that the sentencing court relied on the defendant’s age; it merely observed that Morales “looks 16.” This comment reveals that the trial judge considered the defendant’s immature appearance, not his chronological years. The district court did not depart on account of defendant’s homosexual orientation — which the government equates with a mental or emotional condition. Instead it considered Morales’ sexual orientation, not as a separate characteristic meriting departure, but as it related to his vulnerability. That the district court did not base its sentence upon the defendant’s bisexual orientation is of some significance because to have done so might have raised serious constitutional concerns. Cf. Falk v. Secretary of the Army, 870 F.2d 941, 947 (2d Cir.1989).

To the extent that the district court relied upon the defendant’s physical, mental and emotional condition in finding him particularly vulnerable to victimization, it adhered to the Commission’s admonition that these factors “are not ordinarily relevant in determining whether a sentence should be outside the guidelines.” U.S.S.G. §§ 5H1.3, 5H1.4, p.s. at 5.35-.36. The Commission’s language acknowledges the propriety of considering these factors when, in the sentencing judge’s view, they present an extraordinary situation. Here, the district court obviously believed it had such an extraordinary situation because of the defendant’s particular vulnerability due to his immature appearance, sexual orientation and fragility. The severity of Morales’ prison term is exacerbated by his placement in solitary confinement as the only means of segregating him from other inmates. We agree with the district court that this presents an extraordinary situation that warrants considering factors “ordinarily” irrelevant.

Hence, to the extent the § 5H1 factors of physical, mental and emotional condition were relied upon, such reliance was justified by the extraordinary situation faced by Morales. Cf. United States v. Gonzalez, No. S 88 Cr. 559, 1989 WL 86021 (S.D.N.Y. July 27, 1989), slip op. at 11 (“the qualifying adverb ‘ordinarily’ implies that family ties in some circumstances may be considered in a downward adjustment”); United States v. Hon, No. 88 Cr. 0052, 1989 WL 59613 (S.D.N.Y. May 31, 1989) slip op. at 4-5 (considering that the defendant “is the mother of a young child ... and [has] a close-knit extended family”).

The cases relied upon by the government are inapposite. In United States v. Burch, 873 F.2d 765 (5th Cir.1989), the district court upwardly departed from the guideline range because the defendant was highly educated with numerous opportunities for economic advancement, yet engaged in criminal acts. The Fifth Circuit noted that the Commission designated the defendant’s education and socio-economic status as ordinarily irrelevant at sentencing and that the court’s reliance upon these factors without more was an unreasonable ground for departure. Id. at 769. See U.S.S.G. §§ 5H1.2, 5H1.10, p.s. at 5.35, 5.37; 28 U.S.C. § 994(d) (1982 & Supp. V 1987). In the case at hand, the sentencing court, as noted, did not rely solely upon § 5H1 factors as a basis for departing from the Guidelines’ range, but considered them instead in light of the added burdens of incarceration defendant faced compared to those defendants not standing in his shoes. Equally inapplicable is the Fifth Circuit’s rejection of the district court’s downward departure in United States v. Reed, 882 F.2d 147 (5th Cir.1989). In Reed, the district court had justified a downward departure upon the court’s determination that “there is something good in [the defendant].” Id. at 151. Clearly, the reasons for departure in this case are far more cogent.

The government cites further to United States v. Sailes, 872 F.2d 735 (6th Cir. 1989), which it interprets as affirming the district court’s denial of the defendant’s request to downwardly depart based upon the needs of the defendant’s minor children who required parental guidance. There the district court had considered the impact of the removal of the defendant from her minor children and determined that “the proper development of [the defendant’s] younger children might be facilitated by the children’s removal from her direct influence for a time.” 872 F.2d at 739. Reviewing this decision in light of § 5H1.6 — designating family ties as ordinarily irrelevant at sentencing — the Sixth Circuit ruled that if family ties are relevant they would not “second-guess” the trial judge’s determination that the defendant’s removal would be the best course. Id.

C. Philosophy Behind the Guidelines

The government next urges that the downward departure runs contrary to the sentencing philosophy Congress sought to effectuate through the Sentencing Guidelines. It claims that the Guidelines were based upon the philosophy that the punishment should fit the crime, not the offender, and that the sentencing judge should consider only those characteristics of the defendant that are relevant to the crime committed. The government also contends that the court’s consideration of the potential for victimization reflects a rehabilitative model of sentencing rejected by Congress when it enacted the Guidelines.

These assertions misread the Guidelines’ philosophy. The legislative history reflects that it was not Congress’ aim to straitjacket a sentencing court, compelling it to impose sentences like a robot inside a Guidelines’ glass bubble, and preventing it from exercising discretion, flexibility or independent judgment.

The Committee does not intend that the guidelines be imposed in a mechanistic fashion. It believes that the sentencing judge has an obligation to consider all the relevant factors in a case and to impose a sentence outside the guidelines in an appropriate case. The purpose of the sentencing guidelines is to provide a structure for evaluating the fairness and appropriateness of the sentence for an individual offender, not to eliminate the thoughtful imposition of individualized sentences.

S.Rep. No. 225, 98th Cong., 2d Sess. 52, reprinted in 1984 U.S.Code Cong. & Admin.News 3182, 3235 (Legislative History). Further, although the role of rehabilitation in sentencing has been sharply restricted by the Guidelines, rehabilitation has not been entirely eliminated from the sentencing process. See, e.g., Legislative History at 3233 (listing rehabilitation as the fourth goal of the Sentencing Reform Act); U.S. S.G. ch. 1, Pt. A, intro, comment 2 at 1.1. Thus, Judge Glasser’s consideration of the defendant’s potential for victimization — to the extent that it includes a rehabilitative aim — does not contravene the philosophy behind the Guidelines.

Again, the government incorrectly asserts that the court is limited to consideration of characteristics of the defendant that are directly related to the crime committed. In support of this proposition it refers to a portion of the legislative history interpreting § 3553(a)(1) and the Fifth Circuit’s holding in Burch interpreting ch. 4 Pt. A1 of the Guidelines Manual. But these interpretations relate to provisions authorizing the sentencing court to consider the criminal history and characteristics of the defendant, and do not apply to § 3553(b) which served as the basis of departure in the present case. Congress did not limit what a court may determine under § 3553(b) to have been inadequately considered by the Commission. Rather, this provision was left open to “provide[] the flexibility necessary to assure adequate consideration of circumstances that might justify a sentence outside the guidelines.” Legislative History at 3261. That history makes plain that Congress did not limit sentencing courts to characteristics directly related to the crime in determining which factors warrant departure under § 3553(b).

D. Administrative Remedies

The final argument is that the court erred in lowering Morales’ sentence and not requiring him first to exhaust administrative remedies provided by the Bureau of Prisons. See 28 C.F.R. §§ 542.10-.16 (1989) (Administrative Remedy Procedure for Inmates). This stems from the well-established principle that a defendant must exhaust administrative remedies prior to seeking habeas corpus relief from a federal court. See, e.g., Guida v. Nelson, 603 F.2d 261, 262 (2d Cir.1979) (per curiam). We think this argument misplaced. There is no requirement — statutory or judicial — that a defendant exhaust administrative remedies prior to seeking a reduction in sentence based upon circumstances that could theoretically be redressed through administrative channels. Many of the § 5H1 factors could potentially be so redressed. Cf. U.S.S.G. § 5H1.2, p.s. (“Age may be a reason to go below the guidelines when the offender is elderly and infirm and where a form of punishment {e.g., home confinement) might be equally efficient as and less costly than incarceration.”). If the Commission wanted defendants to exhaust administrative remedies, it could readily have designated § 5H1 factors as relevant only after a defendant had exhausted his administrative remedies, not as “not ordinarily relevant.” In addition, § 3553(b) includes no language limiting a district court’s consideration of a factor to situations where the defendant has already exhausted his administrative remedies. Because the legislative history gives no hint that Congress aimed to constrain a sentencing judge’s discretion only to those factors not subject to resolution through administrative channels, we decline the government’s invitation to create such a restriction.

Ill CONCLUSION

The district court did not abuse its discretion in downwardly departing from the Guidelines’ range pursuant to § 3553(b) in the present case. The personal characteristics of Morales made him particularly vulnerable to inprison victimization. Assaults against vulnerable male or female prisoners make prison life especially dangerous for such individuals. Cf. Greene v. Meese, 875 F.2d 639, 641 (7th Cir.1989) (acknowledging that Bureau of Prisons will likely deny requests for relief from disciplinary sanctions allegedly imposed in retaliation for defendant’s rejection of homosexual overtones); Roland v. Johnson, 856 F.2d 764, 769-70 (6th Cir.1988) (finding that jury could find defendant prison officials failed to effectuate policies to prevent the sexual assault of plaintiff, a more delicate inmate, by two inmates, despite officials’ knowledge of numerous sexual assaults at the prison). Extreme vulnerability of criminal defendants is a factor that was not adequately considered by the Commission and a proper ground for departure under § 3553(b). See Weinstein, A Trial Judge’s First Impression of the Federal Sentencing Guidelines, 52 Alb.L.Rev. 1, 17 (1988). The district court had a rational basis for finding such circumstances here. The sentence imposed below should be affirmed.

Judgment affirmed.