United States v. Twitty

Procedural entryThis page is a short order in United States v. Twitty. Read the opinion of the Court — 72 F.3d 228 →

Court of Appeals for the First Circuit·Decided January 9, 1997·No. 96-1545·Published

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT FOR THE FIRST CIRCUIT

____________________

No. 96-1545

UNITED STATES OF AMERICA,

Appellee,

v.

WILLIAM A. TWITTY,

Defendant, Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nathaniel M. Gorton, U.S. District Judge] ___________________

____________________

Before

Selya, Circuit Judge, _____________

Aldrich, Senior Circuit Judge, ____________________

and Stahl, Circuit Judge. _____________

____________________

Evan Slavitt, by appointment of the Court, with whom Mary P. _____________ _______
Murray and Hinckley, Allen & Snyder, were on brief for appellant. ______ ________________________
Michael J. Pelgro, Assistant United States Attorney, with whom __________________
Dina Michael Chaitowitz, Assistant United States Attorney, and Donald _______________________ ______
K. Stern, United States Attorney, were on brief for appellee. ________

____________________
January 9, 1997
____________________

ALDRICH, Senior Circuit Judge. William A. Twitty _____________________

(hereinafter defendant), caught deep in the sale of illegal

firearms, appealed following the imposition of a cumulative

sentence of 97 months on three counts. His convictions

stood, but we held the court had erred in finding that his

participation in the conspiracy involved lasted long enough

to warrant application of the Sentencing Guidelines adopted

on November 1, 1991. United States v. Twitty, 72 F.3d 228, _____________ ______

232-34 (1st Cir. 1995). The earlier Guidelines were less

severe. We accordingly remanded for resentencing on the

earlier version. On remand, the same judge, by adopting a

different calculation for Count I, the conspiracy count,

reached the same sentence, and thence the original 97 months

total. We can understand defendant's unhappiness with the

evaporation of his partial victory. However, we affirm.

Mere appearances do not prevail over established principles.

See United States v. Lombard, No. 96-1541, slip. op. at 12-13 ___ _____________ _______

(1st Cir. Dec. 4, 1996).

I.

At the first sentencing, the court, believing that

the conspiracy shown extended beyond November 1, 1991, and

adhering to the rule that conspiracy should be grouped with

other counts involving its sole object, U.S.S.G. 3D1.2,

assigned thereto Base Offense Level 14 pursuant to U.S.S.G.

2K2.1(a)(6) of the November 1991 Guidelines. It then added

-2-

four sets of enhancements that brought defendant to Level 28,

which with Criminal History Category II, produced a guideline

range of 87 to 108 months. The court chose 97 months, the

middle of the range, as the "total punishment." See U.S.S.G. ___

5G1.2 (providing a mechanism for determining a "total

punishment" figure in cases with convictions on multiple

counts). On this basis, the court sentenced defendant to 60

months on the conspiracy count, the statutory maximum, and

then imposed a consecutive sentence of 37 months on Count II.

See United States v. Quinones, 26 F.3d 213, 215-17 (1st Cir. ___ _____________ ________

1994). A concurrent sentence of 37 months was imposed on a

third count, leaving the total sentence at 97 months.

At resentencing, the Base Offense Level dropped to

6. The court retained the previous enhancements, resulting

in an adjusted level of 20 which this time produced a 37 to

46 month guideline range, well under the 60 month statutory

maximum. Explaining that this range did not adequately

reflect the magnitude of defendant's conduct, the court

proceeded to depart upward by adding an additional 8 levels,

ending up again with an 87 to 108 month guideline range.

From this it reimposed the 60 months on the first count, and

then effected a further upward departure by reimposing the 37

month consecutive sentence on another count, bringing the

ultimate sentence again to 97 months. It is to be noted that

the reaffirmed sentences on Counts II and III were initially

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imposed on the basis of the November 1990 guidelines, and

were appropriate here, assuming the additional upward

departure with respect to Count I.

II.

We start with the general question. Defendant has

cited no authority for the proposition that there can be no

greater sentence after appeal, here in effect obtained by

upward departure. He might have cited North Carolina v. ______________

Pearce, where the Court held this to be improper after a ______

second trial, if, as here, there were no new and subsequent

justification for so doing. 395 U.S. 711, 725-26 (1969).

Pearce created a presumption of vindictiveness, viz., a ______

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USCA1 Opinion




UNITED STATES COURT OF APPEALS
                            UNITED STATES COURT OF APPEALS



                                FOR THE FIRST CIRCUIT
                                FOR THE FIRST CIRCUIT



                                 ____________________



        No. 96-1545



                              UNITED STATES OF AMERICA,



                                      Appellee,



                                          v.



                                  WILLIAM A. TWITTY,



                                Defendant, Appellant.



                                 ____________________


APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF MASSACHUSETTS



                   [Hon. Nathaniel M. Gorton, U.S. District Judge]
                                              ___________________



                                 ____________________



                                        Before



                                 Selya, Circuit Judge,
                                        _____________



                            Aldrich, Senior Circuit Judge,
                                     ____________________



                              and Stahl, Circuit Judge.
                                         _____________



                                 ____________________



            Evan  Slavitt, by  appointment of  the  Court,  with whom  Mary P.
            _____________                                              _______

        Murray and Hinckley, Allen & Snyder, were on brief for appellant.
        ______     ________________________

            Michael J.  Pelgro, Assistant  United States  Attorney, with  whom
            __________________

        Dina Michael Chaitowitz, Assistant  United States Attorney, and Donald
        _______________________                                         ______

        K. Stern, United States Attorney, were on brief for appellee.
        ________



                                 ____________________

                                   January 9, 1997

                                 ____________________



ALDRICH, Senior Circuit  Judge.  William A.  Twitty
                               _____________________



            (hereinafter defendant),  caught deep in the  sale of illegal



            firearms, appealed  following the imposition  of a cumulative



            sentence  of  97 months  on  three counts.    His convictions



            stood, but we  held the court had  erred in finding  that his



            participation in  the conspiracy involved lasted  long enough



            to warrant  application of the Sentencing  Guidelines adopted



            on  November 1, 1991.  United States  v. Twitty, 72 F.3d 228,
                                   _____________     ______



            232-34  (1st Cir.  1995).   The earlier Guidelines  were less



            severe.   We  accordingly  remanded for  resentencing on  the



            earlier  version.  On remand,  the same judge,  by adopting a



            different  calculation  for  Count I,  the  conspiracy count,



            reached the same sentence, and thence the original 97  months



            total.   We can  understand defendant's unhappiness  with the



            evaporation  of his  partial  victory.   However, we  affirm.



            Mere appearances do not prevail over  established principles.



            See United States v. Lombard, No. 96-1541, slip. op. at 12-13
            ___ _____________    _______



            (1st Cir. Dec. 4, 1996).



                                          I.



                      At the first sentencing,  the court, believing that



            the conspiracy  shown extended  beyond November 1,  1991, and



            adhering to  the rule that conspiracy should  be grouped with



            other counts  involving  its sole  object, U.S.S.G.    3D1.2,



            assigned thereto  Base Offense Level 14  pursuant to U.S.S.G.



              2K2.1(a)(6) of the November 1991 Guidelines.  It then added


-2-



four sets of enhancements that brought defendant to Level 28,



            which with Criminal History Category II, produced a guideline



            range of  87 to 108 months.   The court chose  97 months, the



            middle of the range, as the "total punishment."  See U.S.S.G.
                                                             ___



              5G1.2  (providing a  mechanism  for  determining  a  "total



            punishment"  figure in  cases  with  convictions on  multiple



            counts).   On this basis, the court sentenced defendant to 60



            months on  the conspiracy  count, the statutory  maximum, and



            then imposed a consecutive sentence of 37 months on Count II.



            See  United States v. Quinones, 26 F.3d 213, 215-17 (1st Cir.
            ___  _____________    ________



            1994).  A  concurrent sentence of 37 months was  imposed on a



            third count, leaving the total sentence at 97 months.



                      At resentencing, the Base  Offense Level dropped to



            6.   The court retained the  previous enhancements, resulting



            in an adjusted  level of 20 which this time  produced a 37 to



            46  month guideline range, well  under the 60 month statutory



            maximum.    Explaining that  this  range  did not  adequately



            reflect the  magnitude  of  defendant's  conduct,  the  court



            proceeded to depart upward by adding  an additional 8 levels,



            ending  up again  with an  87 to  108 month  guideline range.



            From  this it reimposed the 60 months on the first count, and



            then effected a further upward departure by reimposing the 37



            month consecutive  sentence  on another  count, bringing  the



            ultimate sentence again to 97 months.  It is to be noted that



            the reaffirmed sentences  on Counts II and III were initially


-3-



imposed on the  basis of  the November  1990 guidelines,  and



            were   appropriate  here,  assuming   the  additional  upward



            departure with respect to Count I.



                                         II.



                      We start with the  general question. Defendant  has



            cited no authority for  the proposition that there can  be no



            greater  sentence after  appeal, here  in effect  obtained by



            upward departure.    He might  have cited  North Carolina  v.
                                                       ______________



            Pearce,  where the  Court held  this to  be improper  after a
            ______



            second trial, if, as  here, there were no new  and subsequent



            justification for  so doing.   395 U.S.  711, 725-26  (1969).



            Pearce  created a  presumption  of  vindictiveness,  viz.,  a
            ______



            judge's irritation at being reversed.  We have held, however,



            that this presumption (and hence restriction) does not apply,



            for  example,  when  the   two  proceedings  are  handled  by



            different judges.  United  States v. Clark, 84 F.3d  506, 508
                               ______________    _____



            (1st  Cir.), cert.  denied,  ___ U.S.  ___,  117 S.  Ct.  272
                         _____________



            (1996).     Under   familiar   principles,  therefore,   that



            defendant's present silence shows  he understands, he  should



            have noted and invoked the presumption, if not when the court



            opened the  hearing, at least  when its action  presented the



            issue.  He did not.



                      We have no  doubt the  court, as a  court, had  the



            discretion  to  depart  upward  and  reimpose  the  97  month


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sentence.   We  have previously  held that  when resentencing



            under a multi-count conviction,



                      [C]ommon  sense  dictates that  the judge

                      should be free to  review the efficacy of

                      what  remains  in light  of  the original

                      sentencing plan, and  to reconstruct  the

                      sentencing   architecture   upon   remand

                      within   applicable   constitutional  and

                      statutory   limits,   if   that   appears

                      necessary in  order  to ensure  that  the

                      punishment still fits the crime.



            United States v. Dominguez, 951 F.2d 412, 416 (1st Cir. 1991)
            _____________    _________



            (quoting United  States v.  Pimienta-Redondo, 874 F.2d  9, 14
                     ______________     ________________



            (1st  Cir. (1989) (en banc)).   The only  restrictions on the



            court when making an upward departure1 are that it adequately



            explain its  decision and  that the departure  be reasonable.



            United States v. Rosales,  19 F.3d 763, 770 (1st  Cir. 1994);
            _____________    _______



            United  States v.  Rivera,  994 F.2d  942,  946-47 (1st  Cir.
            ______________     ______



            1993).   Here the court expressly  based the upward departure



            on  the large number of  guns and the  endangerment of public



            safety.  After review of the record, we have no basis to find



            this unreasonable.



                      Defendant  also  complains  of "double-dipping"  in



            that the upward departure  imposing an additional penalty for



            endangering public  safety2 was  anticipated by  and included



                                
            ____________________



            1.  Other  than vindictiveness,  presumed, North  Carolina v.
                                                       _______________

            Pearce, 395 U.S. 711 (1969), or proven.  See Wasman v. United
            ______                                   ___ ______    ______

            States, 468 U.S. 559 (1984).
            ______



            2.  We  do  not  address  the three  level  upward  departure

            reflecting  the large number of guns involved as in his brief

            defendant concedes that  apart from the  fact that the  exact



                                         -5-



within the Guidelines and,  in any event, taken  into account



            by  the enhancements.   We disagree.   While it  is true that



            some of the enhancements  reflected the fact that defendant's



            behavior exceeded Guideline thresholds, the court determined,



            based on  the entirety of defendant's  actions, i.e., putting



            at  least 225  serial  number obliterated  handguns onto  the



            streets,  that  the thresholds  did not  go  far enough.   It



            concluded  that this  is an  unusual case,  placing defendant



            outside  the heartland  of the  Guidelines and  allowing wide



            discretion  in upward departure.  See Rivera, 994 F.2d at 949
                                              ___ ______



            (1st Cir.  1993).  We  can agree.   Moreover, in  Quinones we
                                                              ________



            noted   that  "appellate   review  of   a   district  court's



            determination that a case  is unusual, and therefore warrants



            departure,  must  take place  'with  full  awareness of,  and



            respect  for, the trier's superior "feel" for the case.'"  26



            F.3d  at 218  (quoting United  States v.  Diaz-Villafane, 874
                                   ______________     ______________



            F.2d 43, 50  (1st Cir. 1989)).   We  heed our admonition  and



            affirm defendant's sentence.


____________________



            sentence  was  reimposed,  this  departure  could  be  deemed

            reasonable.



                                         -6-