Pleas
and Sentencing p2
5.06 OBSTRUCTION OF JUSTICE
The guidelines require a two-level increase in the offense level when the
court finds that a defendant "willfully obstructed or impeded, or attempted to
obstruct or impede the administration of justice during the investigation or
prosecution of his offense." USSG §3C1.1. The commentary to Section 3C1.1
provides a non-exhaustive list of conduct which constitutes obstruction of
justice. Case law provides a variety of scenarios which justify an obstruction
of justice enhancement.
The obstruction guideline was amended effective
November 1, 1998
to include this
application note:
This adjustment applies if the defendant's obstructive conduct (A)
occurred during the course of the investigation, prosecution, or
sentencing of the defendant's instant offense of conviction, and (B)
related to (i) the defendant's offense of conviction and any relevant
conduct; or (ii) an otherwise closely related case, such as that of a
co-defendant.
USSG §3C1.1 comment. (n.1). The purpose was to clarify both the term
"instant offense" and the temporal element of the obstruction guideline. USSG
App. C, amend. 581 (1998).
Section 3C1.1 requires specific intent to obstruct justice. United
States v.
Henderson
, 58 F.3d 1145, 1153 (7th Cir. 1995). The government
bears the burden of proving that the enhancement is warranted by a preponderance
of the evidence.
United States
v. Parrott, 148 F.3d 629, 634 (6th
Cir. 1998);
United States
v.
Ewing
, 129 F.3d 430, 434 (7th Cir.
1997) (citation omitted). The Section does not require proof that the
defendant's conduct actually prejudiced or impacted the case.
Id.
Application note 1 to § 3C1.1 provides for a denial of guilt exception.
USSG § 3C1.1 comment (n.1); United States v. Gormley, 201 F.3d
290, 294 (4th Cir. 2000) (holding that defendant was not entitled to exception
because his statements went beyond merely denying guilt and implicated his
taxpayer clients in scheme to defraud).
The first behavior which is defined as obstruction of justice is
"threatening, intimidating, or otherwise unlawfully influencing a co-defendant,
witness, or juror, directly or indirectly, or attempting to do so." USSG §
3C1.1 comment. ( n.4(a)). See
United States
v. West, 58
F.3d 133, 137-38 (5th Cir. 1995) (holding that the court's finding may properly
be based on uncorroborated hearsay evidence). It is obstruction of justice for
a defendant to tell a witness to lie or confirm a common story. United
States v. Emerson, 128 F.3d 557, 563 (7th Cir. 1997); United
States v. Friend, 104 F.3d 127, 130 (7th Cir. 1997);
United States
v. Hollis, 971 F.2d 1441, 1460 (10th Cir. 1992).
"[C]ommitting, suborning, or attempting to suborn perjury" is likewise
considered conduct warranting an obstruction of justice enhancement. USSG §
3C1.1 comment (n. 4(b)). The Supreme Court has held that when a defendant
perjures himself on the stand, enhancing the defendant's offense level for
obstruction of justice is warranted.
United States
v. Dunnigan,
507
U.S.
87, 96 (1993); accord
United States
v. Fitzgerald,
232 F.3d 315, 321 (2d Cir. 2000) (concluding that obstruction enhancement was
required by defendant's perjury at both trial and sentencing); United
States v. Tandon, 111 F.3d 482, 490 (6th Cir. 1997). Noting that "not
every accused who testifies at trial and is convicted will incur an enhanced
sentence under § 3C1.1 for committing perjury," the sentencing court must
be satisfied that the inaccurate testimony was not due to confusion, mistake, or
faulty memory. Dunnigan, 507
U.S.
at 95. Therefore, in applying
the obstruction enhancement resulting from a defendant's perjury, the trial
court must make findings on the record which encompass all of the factual
predicates for a finding of perjury. Dunnigan, 507
U.S.
at 95.
See also United States v. Logan, 250 F.3d 350, 374-75 (6th Cir.
2001);
United States
v. Mounkes, 204 F.3d 1024, 1028-30 (10th
Cir.), cert. denied, 530
U.S.
1230 (2000). The Court indicated that
perjury requires: (1) the giving of false testimony; (2) concerning a material
matter; (3) with the willful intent to provide false testimony, rather than as
a result of confusion, mistake or faulty memory. Dunnigan, 507
U.S.
at 94. Compare
United States
v. Rubio-Topete, 999 F.2d
1334, 1341 (9th Cir. 1993) (rejecting two-level enhancement for obstruction of
justice in absence of factual findings by the sentencing court encompassing all
of the factual predicates necessary for a finding of perjury). The obstruction
guideline was amended in 1997 to clarify that there is no heightened standard of
proof when making an adjustment for perjury, merely that "the court should be
mindful that not all inaccurate testimony or statements reflect a willful attempt
to obstruct justice." USSG App. C, Amend. 566 (1997).
Another scenario which is specifically delineated by the commentary is
"producing or attempting to produce a false, altered or counterfeit document or
record during an official investigation or judicial proceeding." USSG §
3C1.1 comment. (n.4(c)). But see Parrott, 148 F.3d at 635, in
which the court found that the enhancement was not warranted because there was
no evidence from which to conclude that the defendant submitted the false
documents for the purpose of impeding the government's investigation.
The guidelines also identify "destroying or concealing or directing or
procuring another person to destroy or conceal evidence that is material to an
official investigation or judicial proceeding . . . or attempting to do so" as
evidence obstruction. USSG § 3C1.1 comment (n.4(d)). The Ninth Circuit
found that transfer of $280,000 to
Switzerland
three weeks after the defendant
learned of the criminal investigation warranted the obstruction enhancement.
United States
v. Shetty, 130 F.3d 1324, 1334-35 (9th Cir. 1997)
("[I]n a tax case, money is material evidence.").
A defendant also obstructs justice by "providing materially false
information to a probation officer in respect to a presentence . . .
investigation for the court." USSG § 3C1.1, comment. (n. 4(h)). The
Guidelines define material evidence as information which, "if believed, would
tend to influence or affect the issue under determination." USSG § 3C1.1,
comment. ( n.6). See United States v. Martinez-Rios, 143 F.3d 662,
678 (2d Cir. 1998) (false information in affidavit for sentencing). "The
threshold for materiality ... is 'conspicuously low'." See
Gormley, 201 F.3d at 294 (internal citations omitted). A
defendant's failure to provide a probation officer with information
concerning the defendant's financial status, when it was necessary to
determine the defendant's ability to pay a fine or restitution, is
obstruction of justice.
United States
v. Beard, 913 F.2d 193, 199
(5th Cir. 1990). Accord
United States
v. Romer, 148 F.3d 359,
372-73 (4th Cir. 1998). In Romer, the appellate court found that the
sentencing court does not need to make an express finding of materiality if
it can be fairly implied from the court's statements during sentencing.
Id.
at 372. Note that the amendments effective November 1,
1998 "establish that lying to a probation officer about drug use while
released on bail does not warrant obstruction of justice under §
3C1.1." USSG § 3C1.1
Section 3C1.1 also advises that it is obstruction of justice to provide a
materially false statement to a law enforcement officer that significantly
obstructed or impeded the official investigation or prosecution of the instant
offense. USSG § 3C1.1 comment. (n. 4(g)) (emphasis added); United
States v. Emerson, 128 F.3d at 563; see also
United States
v. Baker, 200 F.3d 558, 561-62 (8th Cir. 2000). Interpreting the plain
language of the section, the First Circuit found "that an enhancement may be made
for unsworn, false statements to law enforcement officers only if the government
shows that the statements significantly obstructed or impeded the official
investigation or prosecution of the offense."
United States
v.
Isabel, 980 F.2d 60, 61-62 (1st Cir. 1992); (noting that
pre-1990 guidelines inaccurately appeared to permit the enhancement for a
deliberate, material lie even if the lie was unsuccessful in impeding the
investigation). accord United States v. Fiala, 929 F.2d 285,
290 (7th Cir. 1991).
An obstruction of justice enhancement is appropriate when a defendant
provides "materially false information to a judge or magistrate." USSG §
3C1.1 comment (n. 4(f)); United States v. Hernandez-Ramirez, 2001
WL 687001 (9th Cir.
June 20, 2001
). In Hernandez-Ramirez, the
Ninth Circuit held that submission of a false financial affidavit to a magistrate
judge for the purpose of obtaining counsel is sufficiently related to the offense
of conviction (violation of the United States Tax Code) to support a § 3C1.1
enhancement.
Id.
at *2.
The Second Circuit has held that backdating a promissory note warrants an
obstruction of justice enhancement.
United States
v. Coyne, 4 F.3d
100, 114 (2d Cir. 1993). In Coyne, the defendant was convicted of
numerous charges including mail fraud and bribery, but was acquitted of tax
evasion resulting from the failure to report $30,000, which was reflected by a
backdated note. The defendant argued that the jury must have concluded that the
transaction was a loan and that he, therefore, did not obstruct the Internal
Revenue Service investigation. The court found that the proof of the crime had
to be supported beyond a reasonable doubt, but that the burden of proving
obstruction of justice was by a preponderance of the evidence. Thus, the court
"was free to find that the backdating was an intentional attempt to thwart the
investigation of a bribe." Coyne, 4 F.3d at 114. See also
United States
v. Powell, 124 F.3d 655, 666-67 (5th Cir. 1997)
(submitting false documents in
IRS
audit, submitting false documents, and
attempting to suborn perjury);
United States
v. August, 984 F.2d
705, 714 (6th Cir. 1992).
Note that application note 4 to USSG § 3E1.1 states that "[c]onduct
resulting in an enhancement under § 3C1.1 (Obstructing or Impeding the
Administration of Justice) ordinarily indicates that the defendant has not
accepted responsibility for his criminal conduct. There may, however, be
extraordinary cases in which adjustments under both §§ 3C1.1 and 3E1.1
may apply." USSG § 3E1.1 comment. (n.4).
The Sixth Circuit has held that a district court must review the evidence
and set forth findings independent of those contained in the presentence
investigation report when applying an obstruction of justice enhancement.
United States
v. Middleton, 246 F.3d 825, 847 (6th Cir. 2001).
When a district court fails to do so, the reviewing court must vacate the
sentence and remand the case for resentencing.
Id.
5.07 GROUPING
Section 3D1.2 of the guidelines provides that "[a]ll counts involving
substantially the same harm shall be grouped together." The purpose is to impose
"incremental punishment for significant additional criminal conduct," but at the
same time prevent double punishment for essentially the same conduct.
United States
v. Seligsohn, 981 F.2d 1418, 1425 (3d Cir. 1992);
United States
v. Toler, 901 F.2d 399, 402 (4th Cir. 1990).
Grouping is a difficult area, and the guideline section outlining the rules for
grouping "is not a model of clarity."
United States
v. Gist, 101
F.3d 32, 34 (5th Cir. 1996).
Section 3D1.2 identifies four alternative methods to determine what
constitutes "substantially the same harm:" (a) the counts involve the same victim
and the same act or transaction; (b) the counts involve the same victim and two
or more acts connected by a common criminal objective or a common scheme; (c) one
of the counts embodies conduct that is treated as a specific offense
characteristic in the guideline applicable to another of the counts; or (d) when
the offense level is determined largely on the basis of the total amount of harm
or loss. USSG § 3D1.2. The methods are alternative and any one or more may
be applied.
United States
v. Bove, 155 F.3d 44, 49 (2d Cir.
1998).
Thus, subsections (a) and (b) provide for grouping when two offenses are
sufficiently interrelated and entail substantially the same harm when they
involve the same victim within the meaning of Section 3D1.2. The term "victim"
is defined by Application Note 2:
The term "victim" is not intended to include indirect or secondary
victims. Generally, there will be one person who is directly and most
seriously affected by the offense and is therefore identifiable as the
victim. For offenses in which there are no identifiable victims . . .
the "victim" for purposes of subsections (a) and (b) is the societal
interest that is harmed. In such cases, the counts are grouped
together when the societal interests that are harmed are closely
related.
USSG §3D1.2, comment. (n.2). Thus, in victimless crimes, "'the grouping
decision must be based primarily upon the nature of the interest invaded by each
offense.'"
United States
v. Gallo, 927 F.2d 815, 824 (5th Cir.
1991)(money laundering and drug trafficking are not closely related); see
United States
v. Harper, 972 F.2d 321. 322 (11th Cir. 1992); but
see,
United States
v. Lopez, 104 F.3d 1149, 1150 (9th Cir. 1997)
(so-called victimless crimes are treated as involving the same victim when
the societal interests that are harmed are closely related and societal
interests harmed by money laundering and drug trafficking are closely
related).
Subsection 3D1.2(c) provides that when conduct that represents a separate
count is also a specific offense characteristic or other adjustment to another
count, the count represented by that conduct is to be grouped with the count to
which it constitutes an aggravating factor. This provision is designed to
prevent "double counting." USSG § 3D1.2, comment. (n.5). Grouping under
this section is only proper, however, when the offenses are closely related.
Id.
Nevertheless, this provision will apply even where the
offenses involve different harms or societal interests.
Id.
Subsection 3D1.2(d) applies to crimes where "the guidelines are based
primarily on quantity or contemplate continuing behavior." USSG §3D1.2,
comment. (n.6). Section 3D1.2(d) lists a number of offenses, including tax
offenses, which are to be included in the category of offenses that have the
offense level determined by loss, and provides a list of offenses specifically
excluded from the operation of that subsection. In other words, Section 3D1.2(d)
"divides offenses into three categories: those to which the section specifically
applies; those to which it specifically does not apply; and those for which
grouping may be appropriate on a case-by-case basis."
United States
v.
Gallo, 927 F.2d 815, 823 (5th Cir. 1991); accord United
States v. Williams, 154 F.3d 655, 656 (6th Cir. 1998)("Subsection (d)
further divides Guidelines sections covering classes of harms more or less
susceptible to aggregation into three broad categories--those which 'are to be
grouped,' those 'specifically excluded' from aggregated treatment and those
subject to grouping on a 'case by case' basis"). Note that there is no
automatic grouping merely because the counts are on the "to be grouped" list.
Seligsohn, 981 F.2d at1425; see Williams, 154
F.3d at 56-57;
United States
v.
Taylor
, 984 F.2d 298, 303 (9th
Cir. 1993);
United States
v. Johnson, 971 F.2d 562, 576 (10th Cir.
1992). Generally, courts have not grouped counts when the applicable guidelines
sections measure the harm differently. Williams, 154 F.3d at 56-
57. Application note 7 expressly states that the methods are alternative and
that any one or more may be applied. Bove, 155 F.3d at 49.
Thus, tax evasion and fraud and conversion offenses have been grouped under
USSG § 3D1.2(d) because they "measure the harm by reference to the amount
of monetary loss" and they are offenses of the same general type due to the
"unity of the offense tables for tax evasion, fraud, and conversion."
United States
v. Fitzgerald, 232 F.3d 315, 319-20 (2d Cir. 2000).
And money laundering and counts involving the failure to file currency
transaction reports can be grouped, and the appropriate offense level determined
by the aggregated quantity of money involved in all the grouped counts.
United States
v. Shin, 953 F.2d 559, 562 (9th Cir. 1992). The
Eleventh Circuit has suggested that grouping might be appropriate for counts
involving both embezzlement and fraud.
United States
v. Harper,
972 F.2d 321, 322 (11th Cir. 1992). The Fourth Circuit has permitted grouping
of antitrust and tax conspiracy offenses.
United States
v. Romer,
148 F.3d 359, 364 (4th Cir. 1998).
The Ninth Circuit held that conspiracy to distribute drugs and money
laundering counts should be grouped because they harmed the same societal
interests. Lopez, 104 F.3d at 1150. The Lopez court
based its holding on the legislative history of the Anti-Drug Abuse Act of 1986
which demonstrated that Congress' primary purpose in prohibiting money
laundering was "to add a weapon to the arsenal against drug trafficking and to
combat organized crime."
Id.
at 1151. The court further noted
that Most Frequently Asked Questions About the Sentencing Guidelines 20 (7th ed.
1994) stated that "[B]ecause money laundering is a type of statutory offense that
facilitates the completion of some other underlying offense, it is conceptually
appropriate to treat a money laundering offense as 'closely intertwined' and
groupable with the underlying offense."
Id.
Grouping is not appropriate under section 3D1.2 when the guidelines measure
harm differently.
United States
v.
Taylor
, 984 F.2d 298, 303
(9th Cir. 1993) (holding that wire fraud and money laundering do not group);
United States
v. Johnson, 971 F.2d 562, 576 (10th Cir. 1992)
(holding that, because wire fraud measures the harm based on the loss resulting
from the fraud and money laundering measures harm on the basis of the value of
the funds, the two crimes do not group). But see USSG § 3D1.2,
comment. (n.5). The Third Circuit has held that grouping is inappropriate in a
case involving both fraud and tax evasion.
United States
v. Vitale,
159 F.3d 810 (3rd Cir. 1998)(wire fraud and tax evasion do not group);
United States
v. Astorri, 923 F.2d 1052, 1056 (3d Cir. 1991);
accord Seligsohn, 981 F.2d at 1425. But see United
States v. Haltom, 113 F.3d 43, 45-47 (5th Cir. 1997), which distinguishes
Astorri and finds that mail fraud and tax evasion counts had to be
grouped where the base offense level for tax evasion was increased because
income was derived from criminal activity.
Question 89 in the Questions Most Frequently Asked About the
Guidelines (1993 Edition) addressed the question of whether tax evasion and
another count embodying criminal conduct that generated the income on which tax
was evaded group. The Commission responded:
Yes. The counts can be grouped under § 3D1.2(c). Grouping rule
(c) instructs that counts are to be grouped when one of the counts
embodies conduct that is treated as a specific offense characteristic
in, or other adjustment to, the guideline applicable to another of the
counts. Specific offense characteristic (b)(1) of 2T1.1 (Tax Evasion)
provides an enhancement if the defendant failed to report or to
correctly identify the source of income exceeding $10,000 in any year
from criminal activity. Tax evasion is always grouped with the
underlying offense according to rule (c), regardless of whether (b)(1)
was actually applied.
The Second Circuit held that violations of 26 U.S.C. § 7206(1),
filing a false return, did not merge with conspiracy to structure financial
transactions to evade reporting requirements in violation of 18 U.S.C. §
371. Bove, 155 F.3d at 50. The Second Circuit also determined
that "the laws prohibiting perjury and tax evasion protect wholly disparate
interests and involve distinct harms to society."
United States
v.
Barone, 913 F.2d 46, 50 (2d Cir. 1990). Thus, the two crimes cannot be
grouped for sentencing purposes. Barone, 913 F.2d at 50.
Accord Williams, 154 F.3d at 657 (when bankruptcy count
charged a false oath or account filed under Title 11 of the United States Code,
harm is measured in a different fashion than tax fraud);
United States
v.
Madoch, 108 F.3d 761, 764 (7th Cir. 1997) (bankruptcy and fraud counts
are grouped separately because they represent separate victims with separate
harms).
At least one circuit has found that verdicts entered at different times can
be grouped for sentencing purposes. See
United States
v.
Kaufman, 951 F.2d 793 (7th Cir. 1992). In Kaufman, the
defendant was indicted on four counts of money laundering and one count of
attempted money laundering. At trial, the jury acquitted the defendant of counts
one and two, convicted on count five, and was unable to reach a verdict on counts
three and four. The court declared a mistrial as to counts three and four,
leaving them unresolved. The court sentenced on count five, and the defendant
appealed. The appellate court found that count five could be grouped for
sentencing with counts three and four, if necessary, when counts three and four
were resolved. Kaufman, 951 F.2d at 796.
The Sixth Circuit has held that Section 3D1.4, regarding multiple count
adjustments, permits a court to apply the multiple count adjustment to counts
arising from separate indictments.
United States
v. Griggs, 47
F.3d 827, 830-31 (6th Cir. 1995). The defendant in Griggs pled
guilty to one count of each of two indictments. Relying on Section 5G1.2
discussing "Sentencing on Multiple Counts of Conviction," the
Griggs court noted that a combined offense level must first be
determined which incorporates the counts from the separate indictments. Only
then is the court free to apply a sentence to multiple counts in a separate
indictment.
Id.
Note that the First Circuit has affirmed a
district court finding that counts from different indictments did not group
because they were not "closely related" as defined in USSG §3D1.2.
United States
v. Hernandez Coplin, 24 F.3d 312, 319-20 (1st Cir.
1994).
5.08 ACCEPTANCE OF RESPONSIBILITY
5.08[1] Acceptance of Responsibility: In General
USSG §3E1.1(a) authorizes the district court to reduce a defendant's
offense level by two levels "[i]f the defendant clearly demonstrates a
recognition and affirmative acceptance of personal responsibility for his offense
. . ." A defendant demonstrates acceptance of responsibility by:
1) truthfully admitting conduct comprising the offense, and
truthfully admitting or not falsely denying any additional
relevant conduct;
2) voluntarily terminating criminal conduct, or withdrawing from
criminal associations;
3) voluntarily paying restitution prior to adjudication of guilt;
4) voluntarily surrendering to authorities promptly after
committing the offense;
5) voluntarily assisting authorities in recovering fruits and
instrumentalities of the offense;
6) voluntarily resigning from an office or position held while
committing the offense;
7) making significant post-offense rehabilitation efforts; or
8) timely accepting responsibility.
USSG §3E1.1(a), comment. (n.1). The provision for a reduction of a
defendant's sentence for acceptance of responsibility "merely formalizes and
clarifies a tradition of leniency extended to defendants who express genuine
remorse and accept responsibility for their wrongs."
United States
v.
Lancaster
, 112 F.3d 156, 158 (4th Cir. 1997), quoting United
States v. Crawford, 906 F.2d 1531, 1534 (11th Cir. (1990).
The most common means by which a defendant qualifies for a reduction in
his offense level for acceptance of responsibility is by entering a guilty plea
and admitting to the elements of the crime to which he is pleading. "This
adjustment is not intended to apply to a defendant who puts the government
to its burden of proof at trial by denying the essential factual elements of
guilt, is convicted, and only then admits guilt and expresses remorse." USSG
§ 3E1.1(a), comment. (n.2) (emphasis added).
In rare circumstances, a defendant may clearly accept responsibility, yet
proceed to trial. Such a circumstance occurs when a defendant goes to trial to
assert and preserve issues of constitutionality or statutory application
unrelated to factual guilt.
United States
v. Mack, 159 F.3d 208,
220 (6th Cir. 1998);
United States
v.
Wilson
, 159 F.3d 280, 292
(7th Cir. 1998);
United States
v. McKittrick, 142 F.3d 1170, 1178
(9th Cir. 1998). In such cases, determination of whether the defendant accepted
responsibility will be based primarily on pre-trial statements and conduct.
Mack, 159 F.3d at 220.
Even if a defendant pleads guilty, the district court may properly find
that the defendant has not accepted responsibility for his conduct and is,
therefore, not entitled to a reduction in offense level. USSG §3E1.1,
comment. (n.3) (A defendant who pleads guilty is not entitled to
an adjustment pursuant to §3E1.1 as a matter of right.);
United States
v. Muhammad, 146 F.3d 161, 168 (3d Cir. 1998). An attempt to plead
guilty also does not guarantee this reduction.
United States
v.
Ervasti, 201 F.3d 1029, 1043 (8th Cir. 2000). In order to qualify for
the reduction, the defendant must affirmatively accept personal responsibility.
United States
v.
Lublin
, 981 F.2d 367, 370 (8th Cir. 1992). The
defendant must show sincere contrition to warrant such a reduction. United
States v. Beard, 913 F.2d 193, 199 (5th Cir. 1990);
United States
v. Royer, 895 F.2d 28, 30 (1st Cir. 1990). The burden is on the
defendant to demonstrate his acceptance of personal responsibility,
Lublin
, 981 F.2d at 370, by a preponderance of the evidence.
United States
v. Middleton, 246 F.3d 825, 845 (6th Cir.
2001)(citing United States v. Tucker, 925 F.2d 990, 991 (6th Cir.
1991)). "[T]he question is not whether [the defendant] has actively asserted his
innocence but whether he clearly demonstrate[d] acceptance of his guilt."
United States
v. Portillo-Valenzuela, 20 F.3d 393, 394 (10th Cir.
1994). Being merely regretful is not sufficient to warrant the reduction.
United States
v. Gallant, 136 F.3d 1246, 1248 (9th Cir. 1998). The
Third Circuit affirmed the denial of acceptance of responsibility to a defendant
who pled guilty in order to obtain tactical advantage. Muhammed,
146 F.3d at 168. The range of conduct upon which a court may base its decision
varies in different circuits.
The assertion of an entrapment defense has been found to be inconsistent
with acceptance of responsibility when the defendant claims that his actions are
not his fault, but rather are due to the inducements of the government.
United States
v. Hansen, 964 F.2d 1017, 1021-22 (10th Cir.
1992). Other courts also have reasoned that the reduction may not
rest solely on the basis that a defendant admitted performing the acts leading
to conviction when that defendant claims entrapment.
United States
v.
Chevre, 146 F.3d 622, 623 (8th Cir. 1998);
United States
v.
Brace, 145 F.3d 247, 264-65 (5th Cir. 1998) (entrapment defense is a
challenge to criminal intent and thus to culpability);
United States
v.
Kirkland
, 104 F.3d 1403, 1405-06 (D.C. Cir. 1997);
United States
v. Simpson, 995 F.2d 109, 112 (7th Cir. 1993). But see United
States v. Davis, 36 F.3d 1424, 1435-36 (9th Cir. 1994) (district court
may not deny defendant acceptance of responsibility solely because he has
presented an entrapment defense). Similarly, the Tenth Circuit affirmed the
denial of acceptance of responsibility to a defendant who acknowledged the
factual basis for the charges and went to trial only to assert the insanity
defense.
United States
v. Moudy, 132 F.3d 618, 621 (10th Cir.
1998). The district court may deny a reduction for acceptance of responsibility
even when the actions of a defendant appear to be in accordance with the
language contained in USSG §3E1.1 comment. (1). The Tenth Circuit found
that the sentencing court properly denied a downward adjustment despite the
defendants' payment of restitution.
United States
v. Hollis,
971 F.2d 1441, 1459 (10th Cir. 1992). In Hollis, the court found
that the reduction was unavailable to the defendants who had signed a consent
judgment only after conviction as to $35,000 that had previously been seized .
Likewise, the defendants' offer to pay $90,000 in restitution in an effort to
avoid indictment failed to qualify the defendants for a reduction.
Hollis, 971 F.3d at 1459.
A defendant, in order to qualify for acceptance of responsibility, need not
admit to conduct beyond the count of conviction. USSG §3E1.1, comment.
(n.1(a)) ("a defendant is not required to volunteer, or affirmatively admit,
relevant conduct beyond the offense of conviction in order to obtain a reduction
under subsection (a)." ) The Government "may not impose substantial penalties
because [an individual] elects not to exercise his Fifth Amendment right not to
give incriminating testimony against himself." Lefkowitz v.
Cunningham, 431
U.S.
801, 805 (1977). To require a defendant to admit
to behavior beyond the crime of conviction would require a defendant to
incriminate himself in violation of his Fifth Amendment privilege. Therefore,
a sentencing court cannot condition the acceptance of responsibility reduction
on admitting conduct for which the defendant was not been convicted. See,
e.g., United States v. Frierson, 945 F.2d 650, 659-60
(3d Cir. 1991);
United States
v. Piper, 918 F.2d 839, 841 (9th Cir.
1990);
United States
v. Oliveras, 905 F.2d 623, 632 (2d Cir.
1990);
United States
v. Perez-Franco, 873 F.2d 455, 463 (1st Cir.
1989). However, "a defendant who falsely denies, or frivolously contests,
relevant conduct that the court determines to be true has acted in a manner
inconsistent with acceptance of responsibility." USSG §3E1.1, comment.
(n.1(a)); See United States v. Bindley, 157 F.3d 1235 (10th Cir.
1998). See also
United States
v. Hicks, 978 F.2d
722, 726 (D.C. Cir. 1992).
Courts have consistently rejected the argument that USSG § 3E1.1
unconstitutionally punishes a defendant who invokes his Fifth Amendment right not
to incriminate himself by admitting his guilt. Denial of the two-level
reduction does not constitute a penalty and does not implicate the Fifth
Amendment.
United States
v. Clemons, 999 F.2d 154, 159 (6th Cir.
1993);
United States
v. Saunders, 973 F.2d 1354, 1362 (7th Cir.
1992);
United States
v. Frazier, 971 F.2d 1076, 1084 (4th Cir.
1992);
United States
v. Piper, 918 F.2d 839, 841 (9th Cir.
1990);
United States
v. Henry, 883 F.2d 1010, 1011
(11th Cir. 1989);
United States
v. White, 869 F.2d 822, 826
(5th Cir. 1989).
Once a court has determined that a defendant has accepted responsibility
for his conduct, a court has no discretion to award less than the two-level
reduction for acceptance of responsibility under §3E1.1(a). United
States v. Carroll, 6 F.3d 735, 741 (11th Cir. 1993) (Section 3E1.1(a)
does not contemplate a partial acceptance of responsibility or a court's being
halfway convinced that a defendant accepted responsibility).
Appellate courts review a sentencing court's factual determination of
whether an individual accepted responsibility deferentially, applying the clearly
erroneous standard.
United States
v. Mack, 159 F.3d 208, 220 (6th
Cir. 1998);
United States
v. Fellows, 157 F.3d 1198, 1202 (9th Cir.
1998);
United States
v. Bove, 155 F.3d 44, 46 (2d Cir. 1998);
United States
v. Bonanno, 146 F.3d 502, 512 (7th Cir. 1998);
United States
v. Mamolejo, 139 F.3d 528 (5th Cir.1998);
United States
v. Cruz Camacho, 137 F.3d 1220, 1226 (10th Cir.
1998);
United States
v. McQuay, 7 F.3d 800, 801 (8th Cir. 1993).
The sentencing court's factual finding is clearly erroneous only if egregiously,
obviously, and substantially erroneous.
United States
v. Ivy, 83
F.3d 1266, 1294-95 (10th Cir. 1996).
Note that application note 4 to USSG § 3E1.1 states that "Conduct
resulting in an enhancement under § 3C1.1 (Obstructing or Impeding the
Administration of Justice) ordinarily indicates that the defendant has not
accepted responsibility for his criminal conduct. There may, however, be
extraordinary cases in which adjustments under both §§ 3C1.1 and 3E1.1
may apply." USSG § 3E1.1 comment. (n.4).
5.08[2] Timely Government Assistance
In certain circumstances, a defendant may be entitled to a 3-level downward
departure for acceptance of responsibility. Effective
November 1, 1992
,
Guideline Section 3E1.1 was amended to provide for a 3-level downward departure:
If the defendant qualifies for a decrease under subsection (a), the
offense level determined prior to the operation of subsection (a) is
level 16 or greater, and the defendant has assisted authorities
in the investigation or prosecution of his own misconduct by taking
one or more of the following steps:
(1) timely providing complete information to the government
concerning his own involvement in the offense; or
(2) timely notifying authorities of his intention to enter a
plea of guilty, thereby permitting the government to avoid
preparing for trial and permitting the court to allocate its
resources efficiently, decrease the offense by 1 level.
USSG §3E1.1(b).
Thus, USSG §3E1.1(b) provides an additional one-level decrease in
offense level for a defendant: (1) whose offense level is 16 or greater before
any reduction under §3E1.1(a); and (2) who admits responsibility under
§3E1.1(a); and (3) who assists the government by timely either: (a)
providing complete information about his own involvement in the case,
or (b) notifying authorities of intent to plead guilty, "thereby
permitting the government to avoid preparing for trial and permitting the court
to allocate its resources efficiently."
United States
v.
Easterling, 157 F.3d 1220, 1224 (10th Cir. 1998). The defendant must
prove that he is entitled to this additional reduction by a preponderance of the
evidence.
United States
v.
Wilson
, 134 F.3d 855, 871 (7th Cir.
1998);
United States
v. Morillo, 8 F.3d 864, 871 (1st Cir. 1993).
In order to qualify for the additional one-level reduction, a defendant
must satisfy all three prongs of the test -- i.e., (1) the defendant
must have an offense level higher than 16 before any reduction for accepting
responsibility; (2) the defendant must accept responsibility; and (3) the
defendant must have timely assisted the Government.
United States
v.
Garcia, 135 F.3d 951, 956-57 (5th Cir. 1998). See United
States v. Leonard, 61 F.3d 1181, 1187 (5th Cir. 1995), in which the court
denied an additional one-level reduction when the defendant waived his right to
a jury trial and stipulated to most of the evidence but did not plead guilty and
save government resources which were required for trial.
Note, however, Section 3E1.1(b) is written in the disjunctive and,
therefore, a defendant need not satisfy both timeliness requirements of (b)(1)
and (b)(2) to qualify for the third-point reduction.
United States
v.
Eyler, 67 F.3d 1386, 1391 (9th Cir. 1995);
United States
v.
Lancaster
, 112 F.3d 156, 158 (4th Cir. 1997).
Timeliness is the key to determining whether a defendant merits this
additional one-level reduction.
Lancaster
, 112 F.3d at 158;
United States
v. Thompson, 60 F.3d 514, 517 (8th Cir. 1995). The
focus of an inquiry into the timeliness of a defendant's conduct is "whether the
defendant provides information in sufficient time to aid the Government in the
investigation or prosecution of the case." Thompson, 60 F.3d at
517; See Lancaster, 112 F.3d at 158. As the guidelines note, the
conduct qualifying for a decrease in offense level under Sections 3E1.1(b)(1) and
(2) generally will occur "particularly early in the case." USSG §3E1.1,
comment. (n.6). This is so even if the information the defendant discloses is
otherwise easily discoverable.
Lancaster
, 112 F.3d at 158;
United States
v. Stoops, 25 F.3d 820, 822-23 (9th Cir. 1994).
Timeliness of a defendant's acceptance of responsibility is a context-
specific, factual question, to be determined on a case-by-case basis. USSG
§3E1.1(b), comment. (n.6); United States v. Ayers, 138 F.3d
360, 364 (8th Cir. 1998);
United States
v. Marroquin, 136 F.3d 220,
224 (1st Cir. 1998);
Lancaster
, 112 F.3d at 158; United
States v. McPhee, 108 F.3d 287, 289 (11th Cir. 1997);
United States
v. Hawkins, 78 F.3d 348, 352 (8th Cir. 1996);
United States
v.
Eyler, 67 F.3d 1386, 1391 (9th Cir. 1995);
United States
v.
McConaghy, 23 F.3d 351, 353 (11th Cir. 1993). Because it is fact-
specific, timeliness "cannot always be measured by counting calendar pages."
United States
v. Dethlefs, 123 F.3d 39, 43 (1st Cir. 1997). Pleas
on the eve of trial are generally untimely.
United States
v.
Brown, 148 F.3d 1003, 1007 (8th Cir. 1998); United
States v.
Wilson
, 134 F.3d 855, 871-72 (7th Cir. 1998); United
States v. Kimple, 27 F.3d 1409, 1413 (9th Cir. 1994);
United States
v. Tello, 9 F.3d 1119, 1125 (5th Cir. 1993);
United States
v.
Donavan, 996 F.2d 1343, 1345 (1st Cir. 1993).. "Thus, a defendant
who delays the disclosure of information to the Government until shortly before
a scheduled trial does not qualify for the reduction."
Lancaster
,
112 F.3d at 158-59. See also Thompson, 60 F.3d at 517;
United States
v. Hopper, 27 F.3d 378, 384-85 (9th Cir. 1994).
Likewise, "[p]leas [on the eve of trial] do not help either the Government to
avoid trial preparation or the court to manage its schedule efficiently, the two
purposes served by the . . . additional one-point reduction." United
States v. Gilbert, 138 F.3d 1371, 1373 (3d Cir. 1998). However, a court
may consider prosecutorial foot dragging when ascertaining a plea's timeliness.
Wilson
, 134 F.3d at 872.
Once a court has determined that a defendant has accepted
responsibility for his criminal acts and meets the three-prong test of
§3E1.1, a sentencing court cannot withhold the third-level reduction for
issues other than timeliness.
United States
v. McPhee, 108 F.3d
287, 289 (11th Cir. 1997)("whether or not to grant the additional one-level
reduction is a matter of determining only whether the defendant timely provided
information and notified authorities of his intention to enter a plea of
guilty."); United States v. Townsend, 73 F.3d 747, 755 (7th Cir.
1996);
United States
v. Huckins, 53 F.3d 276, 279 (9th Cir. 1955).
The First, Seventh, and Ninth Circuit hold that the additional one-point
reduction is "mandatory," not permissive once the defendant satisfies the
relevant guideline criteria.
United States
v. Marroquin, 136 F.3d
220, 223 (1st Cir. 1998);
United States
v. Villasenor-Cesar, 114
F.3d 970, 973 (9th Cir. 1997);
United States
v. Cunningham, 103
F.3d 596, 598 (7th Cir. 1996);
United States
v. Garrett, 90 F.3d
210, 213 (7th Cir. 1996); Townsend, 73 F.3d at 755;
Eyler, 67 F.3d at 1390; United States v. Talladino, 38 F.3d
1255, 1262-63 (1st Cir. 1994).
Courts which have addressed the issue whether the additional one-level
reduction may be withheld on timeliness grounds when a defendant's motions caused
delay generally have found it proper to deny the reduction unless the defendant
filed a motion to protect a constitutional right. See, e.g.,
United States
v. Kimple, 27 F.3d 1409, 1413 (9th Cir. 1994), in which the Ninth
Circuit held that "[t]he denial of a reduction under subsection (b)(2) is
impermissible if it penalizes a defendant who has exercised his constitutional
rights." However, in Kimple, the court noted that the despite the
protection of a defendant's constitutional right, the one-level reduction could
have been denied had the defendant failed to notify authorities of his intent to
plead guilty in time for the government to avoid trial preparation or before the
case had been set for trial. Kimple, 27 F.3d at 1414. Other courts
have held that limiting offense-level reductions if the defendant does not act
in a timely manner does not penalize the defendant for exercising rights.
Gilbert, 138 F.3d at 1373; United States v. Smith,
127 F.3d 987, 989 (11th Cir. 1997).
5.09 DEPARTURES
5.09[1] Departures for Aggravating or Mitigating Circumstances
A guidelines sentence is mandatory, and departure from the prescribed
guidelines range is justified only in limited circumstances. Departures are
governed by Guideline Section 5K. Section 5K1.1, which is discussed in the next
section, provides for a downward departure upon the motion of the government when
the defendant has provided substantial assistance to the government. Section 5K
provides a non-exhaustive outline of factors which the court may consider in
enhancing or reducing a defendant's sentence. These factors include, but are not
limited to:
-the victim's death;
-the victim's physical injury;
-the victim's extreme psychological injury;
-abduction or unlawful restraint of the victim;
-property damage or loss not otherwise accounted for within the USSG;
-weapons and dangerous instrumentalities;
-disruption of Government function unless inherent in the offense;[FN14]
-extreme conduct to victim;
-victim's contributory conduct;
-lesser harm avoided;
-coercion and duress;
-involuntarily diminished capacity;[FN15]
-public welfare;
-voluntary disclosure prior to discovery, where discovery is
otherwise unlikely;[FN16]
-possession of high-capacity, semiautomatic firearms during offense; and
-violent gang membership.
When contemplating departure, the sentencing court must first determine the
appropriate guidelines sentence. Then the court considers whether there are
aggravating or mitigating circumstances present which warrant departure.[FN17]
United States
v. Davern, 970 F.2d 1490, 1493 (6th Cir. 1992). The
defendant must prove by a preponderance of the evidence that he is entitled
to downward departure.
United States
v.
Wilson
, 134 F.3d 855, 871
(7th Cir.), cert. denied, 525 U.S. 894 (1998);
United States
v.
Urrego-Linares, 879 F.2d 1234, 1238 (4th Cir. 1989). The government
bears the burden of proof by a preponderance of the evidence when seeking an
upward departure .
United States
v. Walls, 80 F.3d 238, 241 (7th
Cir. 1996);
United States
v. Okane, 52 F.3d 828, 835 (9th Cir. 1995).
A district court's decision not to depart downward is not appealable when
the guideline range was properly computed unless the district court was
unaware of its power to depart and the sentence was imposed in violation of
law or the guidelines were applied incorrectly.
United States
v.
Logan
, 250 F.3d 350, 374 (6th Cir. 2001). See also
United States
v.
Mounkes, 204 F.3d 1024, 1030-31 (10th Cir.), cert. denied, 530
U.S.
1230 (2000);
United States
v. Lalley, 2001 WL 789093, *4 (8th
Cir.
July 13, 2001
).
In addition to those reasons for departure delineated by the USSG §5K,
the court may depart 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 that
should result in a sentence different from that described." 18 U.S.C. §
3553(b); Burns v.
United States
, 501
U.S.
129, 133 (1991). Thus,
the only circumstance justifying departure from the "mechanical dictates" of the
guidelines occurs when the court finds that the case falls outside the
"heartland" cases covered by the guidelines.
Id.
; See,
generally, USSG §5K2.0 comment. (1998). The Seventh Circuit
characterizes the "outside the heartland cases" in the following manner:
The Sentencing Guidelines were intended to carve out a "heartland," or
a set of typical cases, against which each successive case would be
measured. Departures from the guidelines are allowed only in cases
that involve factors for which the guidelines do not adequately
account, either because the factors are nowhere incorporated into the
guidelines or because the factors are present in an exceptional way.
Therefore, a factor supporting departure from the guidelines must be
sufficiently unusual either in type or degree to take the case out of
the Guidelines' heartland.
United States
v. Carter, 122 F.3d 469, 473 (7th Cir.
1997)(citations and punctuation omitted), quoting
United States
v.
Otis, 107 F.3d 487, 490 (7th Cir. 1997) and Koon v. United
States, 518
U.S.
81 (1996).
Essentially, for purposes of departure, a court may take into consideration
any factor which the Guidelines do not proscribe:
. . . [A] federal court's examination of whether a factor can ever
be an appropriate basis 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 --
as it will be most of the time -- 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 v.
United States
, 518
U.S.
at 109. See
United States
v. Whitaker, 152 F.3d 1238, 1239-40 (10th Cir. 1998); United States
v. Rhodes, 145 F.3d 1375 (D.C. Cir. 1998);
United States
v.
O'Hagan, 139 F.3d 641, 657 (8th Cir. 1998);
United States
v.
Arce, 118 F.3d 335, 339 (5th Cir. 1997);
United States
v.
Brown, 98 F.3d 690, 693 (2d Cir. 1996).
In Koon, the Supreme Court agreed with then-Chief Judge
Breyer's explanation in United States v. Rivera, 994 F.2d 942, 949
(1st Cir. 1993) that a sentencing court considering a departure should ask itself
the following questions:
1) What features of this case, potentially, take it outside the
Guidelines' "heartland" and make of it a special, or unusual, case?
2) Has the Commission forbidden departures based on those features?
3) If not, has the Commission encouraged departures based on those
features?
4) If not, has the Commission discouraged departures based on those
features?
Koon, 518
U.S.
at 95. The Court further explained:
If the special factor is a forbidden factor, the sentencing court
cannot use it as a basis for departure. If the special factor is an
encouraged factor, the court is authorized to depart if the applicable
Guideline does not already take it into account. If the special
factor is a discouraged factor, or an encouraged factor already taken
into account by the applicable Guideline, the court should depart only
if the factor is present to an exceptional degree or in some way makes
the case different from the ordinary case where the factor is present.
If a factor is unmentioned in the Guidelines, the court must, after
considering the "structure and theory of both relevant individual
guidelines and the Guidelines taken as a whole" decide whether it is
sufficient to take the case out of the Guideline's heartland. The
court must bear in mind the Commission's expectation that departures
based on grounds not mentioned in the Guidelines will be "highly
infrequent." 1995 U.S.S.G. ch.1, pt. A, p.6.
Koon, 518
U.S.
at 95-96.
The Commission lists certain factors which can never be bases for
departure: 1) race, sex, national origin, creed, religion, socioeconomic status,
USSG § 5H1.1; 2) lack of guidance as a youth, USSG § 5H1.4; and
economic hardship, USSG § 5K2.12. With the exception of those factors
which are explicitly forbidden, the Commission did 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." USSG ch. 1, pt A, intro.
comment. 4(b). Further, it has been held that USSG § 5K2.0 does not
authorize a sentencing court to grant a substantial assistance departure without
a motion from the Government since the Guidelines adequately consider substantial
assistance departures in USSG § 5K1.1.
United States
v. Maldonado-
Acosta, 210 F.3d 1182, 1184 (10th Cir. 2000).
Courts have departed from the guidelines in a myriad of circumstances after
finding the circumstances surrounding the case placed it "outside the
heartland". A few examples in which a court found the case to be outside the
heartland are: (1) upward departure where defendant egregiously obstructed
justice by conspiring to hide millions in assets from the
IRS
(United
States v. Furkin, 119 F.3d 1276, 1284 (7th Cir. 1997)); (2) downward
departure where government agent in conspiracy and money laundering sting
manipulated defendant through sexual misconduct (
United States
v. Nolan-
Cooper, 155 F.3d 221, 244 (3d Cir. 1998)); (3) downward departure for
extraordinary rehabilitation effort (Whitaker, 152 F.3d at 1239-
40); (4) upward departure where defendant misrepresented himself as acting on
behalf of charitable organization (United States v. Smith, 133 F.3d
737, 750 (10th Cir. 1997)); (5) downward departure for extraordinary pre-
conviction record of civic contributions (United States v. Crouse,
145 F.3d 786, 791 (6th Cir. 1998)); (6) upward departure for use of minor to
perpetrate mail fraud (United States v. Porter, 145 F.3d 897 (7th
Cir. 1998)); (7) downward departure for homosexual defendant vulnerable to abuse
in prison (
United States
v. Wilke, 156 F.3d 749, 753-54 (7th Cir.
1998)); (8) upward departure where three of four bank robbers were armed and
one used an Uzi (United States v. Omar, 24 F.3d 1356 (11th Cir.
1994)); (9) upward departure for defendant who had a persistent 10-year history
of violent antisocial behavior (United States v. Hardy, 99 F.3d
1242, 1245 (1st Cir. 1996)); and (10) downward departure for multiplicity of
factors, not one of which, if individually considered, would take a situation out
of the "heartland," combined to do so (United States v. Rioux, 97
F.3d 648, 663 (2d Cir. 1996)).
The defendant's intent to pay eventually may justify downward departure in
tax evasion cases.
United States
v. Brennick, 134 F.3d 10, 13-15
(1st Cir. 1998). Job loss by innocent employees may justify downward departure
in criminal tax evasion cases.
United States
v. Olbres, 99 F.3d
28, 34 (1st Cir. 1996) (under Koon v.
United States
, 518
U.S.
81,
109-10 (1996), a factor the Guidelines neither forbid nor discourage may be
considered).
Appellate courts have declined to find cases "outside the heartland" where:
(1) a defendant made restitution within Guidelines' contemplation (United
States v. O'Kane, 155 F.3d 969, 975 (8th Cir. 1998)); (2) a defendant
was willing to be deported (United States v. Marin-Castenada, 134
F.3d 551, 555 (3d Cir. 1998);
United States
v. Clase-Espinal, 115
F.3d 1054, 1059 (1st Cir. 1997)); (3) district courts reconciled state and
federal sentencing disparities and differences between codefendants (United
States v. Jones, 145 F.3d 959, 962 (8th Cir. 1998);
United States
v. Schulte, 144 F.3d 1107, 1109 (7th Cir. 1998);
United States
v.
Willis, 139 F.3d 811, 812 (11th Cir. 1998);
United States
v.
Snyder, 136 F.3d 65, 67 (1st Cir. 1998);
United States
v.
Searcy, 132 F.3d 1421, 1422 (11th Cir. 1998)); (4) a defendant asserted
"cultural differences" (United States v. Tomono, 143 F.3d 1401,
1404 (11th Cir. 1998);
United States
v. Weise, 128 F.3d 672 (8th
Cir. 1997));[FN18] (5) a defendant was traumatized by ingesting smuggled heroin
(
United States
v. Marin-Castaneda, 134 F.3d 551, 557 (3d Cir.
1998)); (6) the sentencing court considered the costs of imprisoning the
defendant (United States v. Wong, 127 F.3d 725, 728 (8th Cir.
1997)); (7) a relatively minor white-collar offender who used credit cards
without authorization was harshly punished under the Guidelines (United
States v. Weaver, 126 F.3d 789, 793 (6th Cir. 1997)); and (8) a defendant
committed a fraud of long duration and great extent against eight financial
institutions, depriving them of $500,000 (United States v. Alpert,
28 F.3d 1104, 1108-09 (11th Cir. 1994)).
Courts consistently hold that only "extraordinary" family responsibilities
warrant downward departure.
United States
v. Jones, 158 F.3d 492,
499 (10th Cir. 1998);
United States
v. Archuleta, 128 F.3d 1446,
1550 (10th Cir. 1997);
United States
v. Carter, 122 F.3d 469, 474
(7th Cir. 1997);
United States
v. Romero, 32 F.3d 641 (1st Cir.
1994);
United States
v. Johnson, 964 F.2d 124, 128 (2d Cir. 1992);
United States
v. Thomas, 930 F.2d 526, 530 (7th Cir. 1991).
"Disruption of the defendant's life, and the concomitant difficulties for those
who depend on the defendant, are inherent in the punishment of incarceration."
United States v. Tejeda, 146 F.3d 84, 87 (2d Cir. 1998) (citations
omitted).
To similar effect, defendants' mental and physical health problems rarely
rise to the level of "extraordinary physical impairment" necessary for downward
departure. USSG §§5H1.3, 5H1.4. Sentencing courts have, however,
found extraordinary impairments in the following cases: (1) liver cancer where
death is imminent (United States v. Maltese, 1993 WL 222350, at *10
(N.D.Ill. 1993)); and (2) cancer spread, combined with removal of testicles and
ongoing chemotherapy (United States v. Velasquez, 762 F.Supp. 39,
40 (E.D.N.Y. 1991)). Appellate courts regularly affirm denial of downward
departures to defendants with AIDS (United States v. Rabins, 63
F.3d 721, 727-29 (8th Cir. 1995)) and past brain tumor operations (United
States v. Carey, 895 F.2d 318, 324 (7th Cir. 1990)). Where a defendant's
condition merely requires monitoring, a sentencing court's refusal to depart
downwardly will be affirmed.
United States
v. Altman, 48 F.3d 96,
104 (2d Cir. 1995).
When a sentencing court finds that departure from the prescribed guideline
range is merited, 18 U.S.C. § 3553(c)(1) requires that the court state on
the record its specific reasons for its imposition of the particular sentence.
The sentencing court must state the specific reasons for the departure and the
sentence imposed must be reasonable in light of the articulated reasons.
United States
v. Porter, 23, F.3d 1274, 1280 (7th Cir. 1994). A
court may satisfy the requirement to state specific reasons for the departure by
adopting legally sufficient facts as set forth in a presentence report.
United States
v. Dale, 991 F.2d 819, 856-57 (D.C. Cir. 1993).
Cf.
United States
v. Charroux, 3 F.3d 827, 836 (5th Cir.
1993). A sentencing court must justify the "particular" sentence imposed.
United States
v. Zanghi, 209 F.3d 1201, 1205 (10th Cir. 2000)
(appellate court remanded sentencing determination to district court for
explanation as to supervised release and home confinement when district court
only justified prison term). Additionally, Rule 32, Fed. R. Crim. P., requires
a district court to furnish reasonable notice to the parties of its intent to
depart from the guidelines and to identify with specificity the ground on which
it is contemplating a departure. Burns, 501
U.S.
at 138-39.
Within the parameters of 18 U.S.C. § 3553, departure is within the
sentencing court's sound discretion. Koon, 518
U.S.
at 109;
United States v. Kaye, 140 F.3d 86 (3d Cir. 1998); United
States v. Morris, 139 F.3d 582 (8th Cir. 1998). Likewise, a sentencing
court may properly refuse to exercise its discretion to depart from the
Guidelines.
United States
v. Brye, 146 F.3d 1207, 1213 (10th Cir.
1998);
United States
v. Strickland, 144 F.3d 412, 417 (6th Cir.
1998);
United States
v. Rizzo, 121 F.3d 794, 798-99 (1st Cir.
1997);
United States
v. Hernandez-Reyez, 114 F.3d 800, 801 (8th
Cir. 1997);
United States
v.
Washington
, 106 F.3d 983, 1016 (D.C.
Cir. 1997);
United States
v.
Moore
, 54 F.3d 92, 102 (2d Cir.
1995);
United States
v. Byrd, 53 F.3d 144, 145 (6th Cir. 1995).
In summary, in order to sustain a decision to depart upward or downward
from the applicable sentencing guideline range, the sentencing court must: (1)
interpret USSG policy statements correctly; (2) perform mathematical calculations
accurately; and (3) articulate the reason for its decision on the record.
United States v. Kingdom (U.S.A.), Inc. et al, 157 F.3d 133, 135
(2d Cir. 1998);
United States
v. Isaza-Zapata, 148 F.3d 236, 238
(3d Cir. 1998);
United States
v. Szabo, 147 F.3d 559, 561 (7th Cir.
1998). It must articulate the specific aggravating or mitigating circumstance
and how it differs from "heartland" conduct in the commission of the crime.
United States
v. Onofre-Segarra, 126 F.3d 1308, 1310 (11th Cir.
1997);
United States
v. Miller, 78 F.3d 507, 511 (11th Cir. 1996).
An appellate court will use an abuse of discretion standard when reviewing a
trial court's evaluation of whether the facts and circumstances place it outside
the "heartland." Santoyo, 146 F.3d at 525. Finally, a court must
furnish reasonable notice to the parties of its intent to depart and to identify
with specificity the grounds for departure. Burns, 501
U.S.
at
138-39.
