United States v. Sanders

• Court: Court of Appeals for the First Circuit
• Decided: December 14, 1999
• Docket: 99-1382
• Status: Published

Opinion

USCA1 Opinion

                 United States Court of Appeals

                     For the First Circuit


No. 99-1382



                    UNITED STATES OF AMERICA,



                            Appellee,



                                v.



                        STEVEN H. SANDERS,



                      Defendant, Appellant.


APPEAL FROM THE UNITED STATES DISTRICT COURT



                FOR THE DISTRICT OF NEW HAMPSHIRE



          [Hon. Paul J. Barbadoro, U.S. District Judge]


Before



                      Selya, Circuit Judge,

                                

                 Coffin, Senior Circuit Judge,

                                

                   and Boudin, Circuit Judge.


Bjorn Lange, Assistant Federal Defender, Federal Defender

Office, for appellant.

     Mark E. Howard, Assistant United States Attorney, with whom

Paul M. Gagnon, United States Attorney, and Peter E. Papps, First

Assistant United States Attorney, were on brief for the United

States.


December 14, 1999


BOUDIN, Circuit Judge.  The issue presented on this

appeal is whether an upward departure in sentencing was reasonable 

in amount and whether the choice of amount was adequately

explained.  The case began in 1992 when the defendant, Steven

Sanders, pled guilty to federal charges of being a felon in

possession of a firearm, 18 U.S.C.  922(g)(1), and using a firearm

during a drug trafficking crime, 18 U.S.C.  924(c).  The charges

arose from a violent incident in which Sanders shot his girlfriend,

Brenda Bayko Harnum, in the back of the head at point-blank range;

although she survived, she was left permanently and terribly

impaired.

  At the original sentencing in 1992, the district court

(Judge Devine) sentenced Sanders to 360 months imprisonment.  

This comprised a maximum guideline range sentence for the felon in

possession offense (computed as 262 months), the five year

consecutive mandatory sentence for use of a firearm during a drug

crime (60 months), and a further upward departure (38 months) under 

U.S.S.G.  5K2.2 for causing significant personal injury.  On

direct review, we sustained the lawfulness of the sentence,

including the departure.  United States v. Sanders, 982 F.2d 4 (1st

Cir. 1992), cert. denied, 508 U.S. 963 (1993).

  Thereafter, Sanders petitioned for post-conviction relief

under 28 U.S.C.  2255 to undo his conviction for using a firearm 

during a drug crime.  The basis for the attack was the Supreme

Court's intervening decision in Bailey v. United States, 516 U.S.

137 (1995), which construed the term "use" to require active

employment of the weapon during the drug crime.  Because Sanders'

guilty plea had been based on a less demanding definition then in

force in this circuit, the district court vacated Sanders'

conviction on that count in May 1998, see Sanders v. United States,

No. 97-73-SD (D.N.H. May 5, 1998), and Sanders then sought

resentencing, despite a warning from the district court that this

might not be in his best interests.

  On March 4, 1999, after a hearing, Sanders was

resentenced by Judge Barbadoro (who inherited the case on Judge

Devine's death) to 324 months on the felon in possession count. 

Based on calculations not here in dispute, the district court

computed Sanders' initial guideline range for the offense as 135-

168 months, but found this trumped by the minimum mandatory

sentence of 15 years for the offense to which Sanders was subject

because of his prior convictions.  18 U.S.C.  924(e)(1).  From

this starting point of 180 months, the district court then departed

upward by 144 months, again based on significant physical injury to

the victim, to arrive at the final 324-month sentence.

  Sanders now appeals to challenge his new sentence.  He

does not dispute the starting point for the departure or the

decision to depart, constrained on the latter issue by this court's

decision on Sanders' earlier appeal, see Sanders, 982 F.2d at 8-10. 

Rather, Sanders' able counsel attacks the magnitude of the

departure (144 months), which practically doubled the guideline

maximum (168 months) and greatly exceeded the mandatory minimum

sentence (180 months).  He argues that this is unprecedented and

unreasonable and, alternatively, that it is inadequately explained. 

  The extent of a departure is by statute subject to review

for reasonableness.  See 18 U.S.C.  3742(f)(2); United States v.

Diaz-Villafane, 874 F.2d 43, 49 (1st Cir.), cert. denied, 493 U.S.

862 (1989).  The case law calls for a reasonable explanation by the

district court as well as a reasonable result.  See United States

v. Brewster, 127 F.3d 22, 31-32 (1st Cir. 1997), cert. denied, 118

S. Ct. 1543 (1998).  Where (as here) the raw facts are not in

dispute, the end result is usually a judgment call based on all of

the pertinent circumstances and is reviewed for abuse of

discretion.  See Koon v. United States, 518 U.S. 81, 99 (1996).  

  In this case, the circumstances that gave rise to the

departure were that Sanders sought to murder Harnum, nearly

succeeded, and inflicted upon her an awful and continuing injury. 

There is no doubt that this was a permissible basis for departure. 

U.S.S.G.  5K2.2, relied on by the district court, provides at the

outset that "[i]f significant physical injury resulted, the court

may increase the sentence above the authorized guideline range." 

It continues, in pertinent part, as follows:

    The extent of the increase ordinarily should

  depend on the extent of the injury, the degree

  to which it may prove permanent, and the

  extent to which the injury was intended or

  knowingly risked.  When the victim suffers a

  major, permanent disability and when such

  injury was intentionally inflicted, a

  substantial departure may be appropriate.



  The two relevant elements in this explanation are

intentionality and the extent of harm, and the district court made

findings as to both elements.  As to intent, the court rejected as

preposterous Sanders' explanation that the back of the head

shooting was an accident resulting from a struggle.  It found

explicitly that Sanders had intended to kill Harnum, although it

described this as an attempt at murder in the second degree, rather

than in the first, because it apparently grew out of a quarrel and

premeditation was uncertain.  Neither side disputes this finding on

appeal.

  At the time of the original sentencing, Harnum was in a

vegetative state and was not expected to survive.   By the second

sentencing, Harnum had improved somewhat but her condition remained

tragic.  The district court found that Harnum "remains profoundly

disabled in a way that is horribly damaging to her ability to enjoy

any semblance of a normal life, and [that] this disability is not

going to significantly change over time."  The court described

Harnum's confinement to a wheelchair with splints on both legs and

one wrist, her need to wear a mouth guard to protect her teeth from

constant grinding, and her need for 24-hour-a-day care including

mealtime supervision to prevent her from choking on her food.

  As a result of her condition, Harnum--a single mother--

could not care for her two young children and was unable to have

them live with her.  The government plausibly sought a separate

departure for psychological injury to the children, see U.S.S.G. 

5K2.3, but the district court declined the invitation for lack of

specific evidence as to the children's condition.  However, the

court did conclude that Harnum's inability to care for or live with

her children was a further indication of the injury inflicted upon

her and thus properly considered in measuring the extent of the

departure under U.S.S.G.  5K2.2.  The facts as to Harnum's

condition are not disputed on this appeal.

  In its sentencing, the court discussed at some length the

facts just recited as to intention and harm.  It explained its

general approach as asking what addition should be made--based on

the attempted murder and its consequences for Harnum--to the 15

year, statutorily prescribed sentence for someone who was an

ordinary felon in possession with a criminal record that had

triggered the minimum sentence; and the court noted the minimum

sentence of 15 years that Harnum could have received in state court

in New Hampshire for attempted murder.  See N.H. Rev. Stat. Ann. c.

651:2 (II)(d), (II-c) (1996).  On this basis, the district court

departed upward by 144 months.

  The district court's rationale is thus fairly

straightforward.  With no shooting at all, Sanders' gun possession

and his record required a 15-year sentence; based on the attempted

murder and the terrible harm done, the court added 12 more years,

resulting in a 27-year sentence.  This was a few years less than

the 30 years that Sanders apparently might have been given as a

maximum under New Hampshire law for attempted murder, see N.H. Rev.

Stat. Ann. c. 651:2 (II-c), but a few years more than the 22 and

1/2 years that defense counsel said was the likely sentence if all

of Sanders' gun related conduct had been considered in a New

Hampshire state court.

  In many cases, a judge does not explain precisely why he

chose one number rather than another for a departure; and such

failures are often justified because the underlying factors did not

lend themselves to precise measurement.  See United States v.

Rostoff, 53 F.3d 398, 408 (1st Cir. 1995); United States v.

Aymelek, 926 F.2d 64, 70 (1st Cir. 1991).  But in this case, the

district court did use a rationale that lent itself to measurement,

namely, what likely would have happened in state court if (as

usually happens) the attempted murder had been independently

prosecuted under state law.  There is thus nothing to the claim

that the departure was not fully explained.

  Reasonableness of the result is a different matter. 

Sanders' broadest argument on this score is that the departure

itself is huge and without precedent.  There is no doubt that the

departure is large both in absolute terms (144 months) and in

relation to the pre-departure figure (almost double if one starts

with the guideline maximum or about 80 percent if--perhaps more

appropriately--one begins with the statutory minimum).  But there

is no lack of precedent for departures as large and larger, and

the reason why it is so large is easily explained.

  Taken alone, being a felon in possession is a serious yet

still modest crime; but it is far more severely punished (by a

fifteen year minimum) when coupled with a history that includes

three other crimes involving drugs or violence.  Yet many would

think that this composite offense is itself less serious than the

further offense of attempted murder coupled with horrendous

physical harm to the victim.   It is this second offense that is

the effective measure of the departure.  Assuming the premise that

it is at least as serious as the first, the near doubling is easily

explained.  Cf. United States v. Lombard, 102 F.3d 1 (1st Cir.

1996), cert. denied, 520 U.S. 1266 (1997).

  Sanders' better argument is narrower.  He argues that

under the federal guidelines, conviction for second degree murder

would have produced a guideline range with a maximum far below the

324-month sentence; the proper figure for comparison is probably

235 months rather than the 168 months claimed by defense counsel,

but even so the jump from 235 months to 324 months is a large one. 

And the 235-month sentence builds in a criminal history adjustment

based on Sanders' prior crimes (which the district court found to

place him in category IV), although it takes no account of his most

recent felon in possession offense.

  Yet all this proves is that there are competing

yardsticks that might have been used in determining a departure and

that more than one of them might reasonably be selected.  Here, the

second degree murder analogy can easily be criticized as too kind

to Sanders:  it accounts for the deliberate attempt to murder his

victim--indeed, over-accounts in one sense since Harnum did not

die--but ignores entirely the peculiar brutality of the crime and

the terrible permanent harm inflicted upon Harnum and the awful

consequences of that harm (e.g., the loss of her children); and

these elements could themselves warrant a very substantial upward

departure even if one treats the wicked intent as already covered

by the guideline sentence.

  The concepts of "reasonable" departure and "abuse of

discretion" reflect the reality that there are often a set of

permissible outcomes available to the district court.  See Rostoff,

53 F.3d at 409.  This is just such a case.  Depending on how it

reasoned, the district court could have chosen a smaller departure

or, possibly, a somewhat larger one without courting reversal.  In

all events, we think that its conduct of the proceeding and careful

delineation of issues and choices were exemplary and that the

result was well within its authority.

  There remains one further issue raised not by defense

counsel but by Sanders himself in a pro se brief.  Recall that the

district court set aside under section 2255 Sanders' original

conviction for using a firearm in connection with a drug crime. 

While federal sentencing usually reflects a package approach, that

offense carried a statutorily mandated separate penalty of 60

months, which fell with the overturning of the conviction.  Judge

Barbadoro was prepared to strike the 60-month separate sentence but

otherwise leave intact Judge Devine's earlier sentence, which would

have left Sanders with a 300-month sentence.

   Sanders nevertheless insisted on resentencing in the

teeth of Judge Barbadoro's warning that Sanders might end up with

more than 300 months, depending on the facts and the court's

exercise of its own judgment.  That is just what happened.  The new

sentence was 324 months, less than the total sentence Judge Devine

had imposed but larger than the amount nominally attributable to

the felon in possession count and the departure under Judge

Devine's sentencing scheme.  This, Sanders claims in his pro se

brief, was unconstitutional.

  Sanders' claim rests--or, more accurately, seeks to rest-

-upon North Carolina v. Pearce, 395 U.S. 711, 725-26 (1969). 

There, a defendant was tried and convicted, appealed, won a new

trial, and after reconviction was given a higher sentence.  To

protect against the threat of punishing a defendant for appealing,

the Supreme Court invoked a presumption of vindictiveness and said

that a higher sentence after retrial must be explained based upon

objective information, such as new evidence bearing on the sentence

not available at the initial trial.

  The Supreme Court has yet to consider the situation in

which there is not a subsequent trial and where the resentencing is

by a different judge and is occasioned by a successful collateral

attack on one of the underlying convictions, but we will assume

dubitante that the presumption of vindictiveness applies in such a

case.  If so, Sanders might have an argument that, subject always

to an adequate explanation justifying a larger sentence, his second

sentence could not exceed 360 months.  But the second sentence did

not exceed 360 months.

  Sanders' original sentence, like federal sentences in

general, was a package.  See United States v. Rodriguez, 112 F.3d

26, 28-30 (1st Cir.), cert. denied, 522 U.S. 895 (1997).  True, by

statute the district court had to impose a 60-month consecutive

sentence for the use of a firearm in a drug crime, but that did not

make this component irrelevant to setting the rest of the sentence. 

In deciding just how far to depart at the original sentencing, the

district court considered how far it wanted to go above the

sentence that Sanders would otherwise serve, which included the 60

months (as well as the pre-departure sentence for the felon in

possession offense).

  In one case after another, this and other courts have

permitted a new sentence to be calculated after one element has

been eliminated, without treating parts of the prior sentence as a

limit on the new one.  In our view, the Pearce limitation, where

it exists, only constrains the bottom line of the new sentence from

exceeding the bottom line of the old one.  We add only that in this

case new information about the extent of the victim's conscious

suffering was available to the district court that would satisfy

Pearce even if its constraint did apply.

  Affirmed.