UNITED STATES of America, Plaintiff-Appellant, v. Francisco Javier BARAJAS-NUNEZ, Defendant-Appellee.
No. 95-1643
United States Court of Appeals, Sixth Circuit
Argued Dec. 8, 1995. Decided Aug. 6, 1996.
D. Whether the conduct, though unauthorized, was expectable in view of the employee‘s duties
To the extent that this factor requires an examination of Pinion‘s actions vis-a-vis the duties for which she was employed, it effectively merges with the inquiry undertaken by section III.A, supra. As to whether her actions were in fact expectable by the USPS at the time she acted, it is clear that her actions were expectable in that postal officials both suggested that she file the complaint and accompanied her when she did so. Therefore, this factor also supports a finding that Pinion‘s actions were within the scope of her employment.
IV. Conclusion
For the foregoing reasons, the decision of the District Court resubstituting Angela Pinion as defendant is reversed. The order, docketed May 22, 1995, remanding the action to Pike County Circuit Court is vacated; the action is remanded to the District Court for further proceedings not inconsistent with this opinion.
Wade S. Seys (argued and briefed), Grand Rapids, MI, for Francisco Javier Barajas-Nunez.
Before: BROWN, SILER, and MOORE, Circuit Judges.
MOORE, Circuit Judge.
The United States appeals the sentence of Defendant-Appellee Francisco Javier Barajas-Nunez because it asserts that the district court departed downward from the sentencing guidelines based on improper factors. For the reasons that follow, we vacate Barajas-Nunez‘s sentence and remand the case to the district court for resentencing.
I. Background
In August 1994, Barajas-Nunez was deported from the United States after being convicted of distributing marijuana, an aggravated felony. In September 1994, Barajas-Nunez illegally returned to the United States, allegedly to assist his girlfriend. His girlfriend was pregnant with his child, required surgery, and, according to Barajas-Nunez, did not have anyone else to assist her. Before his deportation, Barajas-Nunez had resided with his girlfriend, with whom he had one other child. In November 1994, Barajas-Nunez was arrested at his girlfriend‘s residence in Michigan.
Barajas-Nunez was indicted for and pleaded guilty to being found in the United States after an illegal reentry in violation of
At the May 1995 sentencing hearing, the district court asked for comment from the government‘s attorney, who responded that the government concurred in the sentencing recommendation made by the probation department in the PSR. The court then asked for comment from Barajas-Nunez‘s counsel, who requested that ... in the interests of justice that this court depart to a lower sentence. The government did not object. The district court then conducted the required allocution of the defendant, who described the circumstances of his illegal reentry and indicated that he returned to the United States to assist his pregnant girlfriend and to be responsible for my children. The district court then imposed sentence as follows:
The Court is of the opinion that I should not ... impose a 57 months sentence on this defendant. This defendant did not commit any crimes except for illegal reentry, and he is going to be deported. I am not naive enough to believe that once he is deported he won‘t come back again, but neither do I believe that the government of the United States would be well served by supporting a man in prison for four and one-half years who did nothing more than come back to see his children and to assist in the birth of another child. That is just beyond me to do.
The Court makes a finding that it should depart under the 5K series, 5K2 series of the guidelines manual, specifically, 5K2.0, 5K2.11, and 5K2.13. There are cases and instances the Court believes, as described in the policy statement of 5K2.0, that would warrant departure, but cannot be comprehensively listed and analyzed in advance by the Sentencing Commission. The Court is of the opinion that the controlling decision as to whether and to what extent such departure is warranted can only be made by the Court; and I am one of said Court, and I am literally reading from 5K2.0.
In addition to that, the Court believes that 5K2.11 is impacted. It indicates to the Court and to the readers of the guidelines that sometimes the defendant may commit a crime in order to avoid a perceived greater harm. In this instance, the Court finds as a factual matter that the defendant perceived that his woman was in grave danger of physical harm, and that as a father he was responsible for making certain that she received medical care. In that kind of an instance, I think that, and so find, a reduced sentence may be appropriate because I believe the circum
stances diminish society‘s interest in punishing his conduct in this case. I also believe that 5K2.13, a policy statement about diminished capacity, is impacted to some degree at least. This defendant has a total of one year of education. With one year of education and no ability to speak English, one cannot expect him to understand and to act the same way a more rationally educated person would react. In addition to that, he has a bullet in his body which was caused by his being robbed and he is in pain. He has been asking for medication for his pain from the county jail, but he has not received any. It strikes me that given the level of his education and his reaction to his woman‘s illness have diminished to some degree at least his capacity to appreciate what he should or could do with regard to the law.1
Thus, the district court departed from
II. Mootness
Barajas-Nunez‘s counsel represented in his brief that Barajas-Nunez completed his sentence and was deported in August 1995. Although the parties did not raise this issue, the completion of the sentence and the deportation present a mootness question that we should address.
A government appeal of a downward departure is not mooted by the defendant‘s completion of his sentence and subsequent deportation. See United States v. Valdez-Gonzalez, 957 F.2d 643, 646-47 (9th Cir.1992). The Ninth Circuit held that when the defendant‘s sentence includes supervised release, which could be converted into incarceration time if the defendant is rearrested in the United States, the government‘s appeal of the defendant‘s sentence is not moot. Id.
The Ninth Circuit based its holding on the Supreme Court‘s decision in United States v. Villamonte-Marquez, 462 U.S. 579, 103 S.Ct. 2573, 77 L.Ed.2d 22 (1983). In that case, the Court held that the defendant‘s deportation did not moot the government‘s appeal to the Supreme Court, in which the government sought to reinstate convictions that had been reversed by the court of appeals. The Court stated that the possibility of arrest and imprisonment for the reinstated convictions if the defendants reentered the United States was sufficient to keep the appeal from being moot. Id. at 581 n. 2, 103 S.Ct. at 2575 n. 2.
Likewise, the government‘s appeal here is not moot. Barajas-Nunez‘s sentence included two years of supervised release, which would expire in August 1997. If Barajas-Nunez returned to the United States, as he apparently has, he could be incarcerated, as he was, or otherwise supervised by U.S. authorities pursuant to his supervised release conditions. Therefore, the government‘s challenge to his sentence is not moot and may be considered by this court.
III. Forfeiture of Objections To Sentence
Barajas-Nunez argues that the government waived any error in the sentence by failing to object to the downward departure at sentencing. The government argues that the district court failed to give the government proper notice of its intent to depart.
The PSR in this case clearly did not provide the government with notice of a possible downward departure, and Barajas-Nunez‘s counsel did not object in advance to the PSR recommendations regarding departures. However, Barajas-Nunez‘s counsel did re
Even if the government did not receive advance notice, its failure to object to the merits of the departure cannot be excused because the government failed to give the district court any inkling that it disagreed with the departure. The government not only failed to object when the defendant requested a downward departure, but also failed to object when the district court gave it an opportunity to comment after sentence was imposed. The government had an opportunity to object when the district judge asked if there was anything else he should do with regard to the sentence. See United States v. Filker, 972 F.2d 240, 242 (8th Cir.1992) (government had opportunity to object when court asked if there were any other matters to be considered). The government‘s previous statement to the district court that it concurred in the recommendations contained in the PSR was not a sufficient objection to preserve the sentencing issue for appeal, because it failed to provide the district court with the basis of the government‘s disagreement with its departure ruling. See United States v. Houston, 892 F.2d 696, 706 (8th Cir.1989) (government request to sentence in accordance with the Guidelines does not rise to the level of a proper objection).
Generally, a failure to object at sentencing forfeits any challenge to the sentence on appeal. United States v. Olano, 507 U.S. 725, 731, 113 S.Ct. 1770, 1776, 123 L.Ed.2d 508 (1993) (errors not timely raised in the district court are forfeited). The government‘s failure to notify the district court of any concern regarding the lack of advance notice and the court‘s downward departure constituted a forfeiture of the government‘s objections on both issues. Id. at 733-34, 113 S.Ct. at 1777-78 (failure to make a timely objection is a forfeiture of that objection, not a waiver).
Although the government forfeited its objections to Barajas-Nunez‘s sentence, we will review the sentence for plain error. Olano, 507 U.S. at 731, 113 S.Ct. at 1776 (forfeited error may be corrected on appeal pursuant to
IV. The Sentence
The government argues that the district court‘s departure was improper because the factors that the district court relied upon to
A. The District Court‘s Downward Departure
According to the Supreme Court‘s recent decision in Koon v. United States, 518 U.S. 81, 116 S.Ct. 2035, 2043-44, 135 L.Ed.2d 392 (1996), this court reviews a district court‘s downward departure from the Sentencing Guidelines pursuant to an abuse of discretion standard. The Koon Court stated that [a] district court‘s decision to depart from the Guidelines ... will in most cases be due substantial deference, for it embodies the traditional exercise of discretion by the sentencing court. Id. at 98, 116 S.Ct. at 2046. The Koon Court also noted that:
[W]hether a factor is a permissible basis for departure under any circumstances is a question of law, and the court of appeals need not defer to the district court‘s resolution of the point. Little turns, however, on whether we label review of this particular question abuse of discretion or de novo, for an abuse of discretion standard does not mean a mistake of law is beyond appellate correction. A district court by definition abuses its discretion when it makes an error of law. That a departure decision, in an occasional case, may call for a legal determination does not mean that parts of the review must be labeled de novo while other parts are labeled an abuse of discretion. The abuse of discretion standard includes review to determine that the discretion was not guided by erroneous legal conclusions.
Id. at 100, 116 S.Ct. at 2047-48 (citations omitted). Thus, the Koon Court‘s abuse of discretion standard replaces the three-part standard of review adopted by this court in cases such as United States v. Fletcher, 15 F.3d 553, 556 (6th Cir.1994); United States v. Rutana, 932 F.2d 1155, 1158 (6th Cir.), cert. denied, 502 U.S. 907, 112 S.Ct. 300, 116 L.Ed.2d 243 (1991); and United States v. Brewer, 899 F.2d 503, 506 (6th Cir.), cert. denied, 498 U.S. 844, 111 S.Ct. 127, 112 L.Ed.2d 95 (1990).
In this case, the district court committed plain error by relying on improper factors as a basis for a departure pursuant to
If the defendant committed a non-violent offense while suffering from significantly reduced mental capacity not resulting from voluntary use of drugs or other intoxicants, a lower sentence may be warranted to reflect the extent to which reduced mental capacity contributed to the commission of the offense, provided that the defendant‘s criminal history does not indicate a need for incarceration to protect the public.
In prior cases this court has held that diminished mental capacity is found where a defendant‘s condition affects his ability to process information or to reason. United States v. Johnson, 979 F.2d 396, 401 (6th Cir.1992); United States v. Hamilton, 949 F.2d 190, 193 (6th Cir.1991) (per curiam). There is no indication that Barajas-Nunez was unable to process information or to reason, or that he did not appreciate the wrongfulness of his conduct. Barajas-Nunez admitted that he had been told not to reenter the United States, but he did it anyway. Section 5K2.13 uses the words suffering from significantly reduced mental capacity, implying that the departure is intended to be available in cases of mental illness, injury, or defect.
Barajas-Nunez‘s inability to speak English and lack of formal education, upon which the district court based its diminished mental capacity finding, do not affect Barajas-Nunez‘s ability to process information or to reason. Thus, these factors do not constitute significantly reduced mental capacity as a matter of law. Barajas-Nunez‘s inability to speak English may not be considered as a basis for departure. See United States v. Rodriguez, 882 F.2d 1059, 1066 (6th Cir.1989) (holding that inability to speak English is irrelevant to sentencing). Moreover, to equate an inability to speak English with a mental illness or defect insults the many
Barajas-Nunez‘s lack of formal education also cannot be considered as a proxy for a mental illness or defect that might constitute diminished mental capacity. Lack of education is a disfavored ground for departure. Rodriguez, 882 F.2d at 1066 (citing
The district court also found that a departure was warranted under the lesser harms policy statement in
Sometimes, a defendant may commit a crime in order to avoid a perceived greater harm. In such instances, a reduced sentence may be appropriate, provided that the circumstances significantly diminish society‘s interest in punishing the conduct, for example, in the case of a mercy killing. Where the interest in punishment or deterrence is not reduced, a reduction in sentence is not warranted. For example, providing defense secrets to a hostile power should receive no lesser punishment simply because the defendant believed that the government‘s policies were misdirected.
Although we believe that the district court‘s findings in this case do not support a lesser harms departure, which applies only in narrow, extreme circumstances such as mercy killing, we cannot find that any error on this ground is plain, given the dearth of caselaw on the application of the lesser harms provision in similar contexts and the deference owed to the district court‘s determination that a case falls outside a guideline‘s heartland. See Koon, 518 U.S. at 98-99, 116 S.Ct. at 2046-47 (appeals courts owe substantial deference to district court‘s determination that a case is sufficiently unusual to fall outside the heartland carved out by each guideline).
Finally, although the district court cited
B. Substantial Rights/Fairness, Integrity, & Public Reputation of the Judicial System
Pursuant to
Judge Siler‘s dissent focuses on whether the district judge‘s error concerning diminished mental capacity affected substantial rights. Judge Siler correctly notes that this case is unusual, in that it is not the defendant who is claiming that an error affects his substantial rights. Instead, the government is objecting, albeit belatedly, to the erroneous sentence. Recognizing that it is far easier for a defendant to show violation of his substantial rights, we cannot assume that either the Olano Court or the drafters of
The departure in this case was based, at least in part, on an incorrect interpretation of the sentencing guidelines. As shown above, this plain error affects substantial rights. Under Olano we have discretion to correct such a plain error only if it seriously affects the fairness, integrity or public reputation of judicial proceedings. Id. at 736, 113 S.Ct. at 1779. Permitting sentencing courts to disregard governing law would diminish the integrity and public reputation of the judicial system. Allowing this substantial departure to stand also would diminish the fairness of the criminal sentencing system by imposing a significantly smaller sentence on Barajas-Nunez than on all other aliens who illegally reenter the United States. Such a result would fly in the face of one of the primary purposes of the sentencing guidelines—the elimination of disparities in sentencing. See Burns v. United States, 501 U.S. 129, 133, 111 S.Ct. 2182, 2184-85, 115 L.Ed.2d 123 (1991) (one purpose of Sentencing Reform Act and Guidelines was to eliminate disparities associated with prior indeterminate sentencing scheme);
C. Necessity of Remand
Because we find that the district court‘s departure rested, at least in part, on an invalid ground, we must remand unless we can determine that the district court would have imposed the same sentence absent reliance on the invalid ground. Koon, 518 U.S. at 113, 116 S.Ct. at 2053-54; Williams v. United States, 503 U.S. 193, 203, 112 S.Ct. 1112, 1120-21, 117 L.Ed.2d 341 (1992). In this case, however, we cannot make that determination given the district court‘s apparent reliance on several factors jointly as its basis for departure and its failure to provide any justification for the extent of its departure in this case. The district court did state clearly its reasons for departing, i.e. the rationales of lesser harms and diminished capacity, but it then simply imposed the eight-month sentence without any discussion of how the eight-month figure was calculated or why it was appropriate. The court stated:
The Court, for all of the reasons that I just stated, intends to depart from the guidelines and does depart from the guidelines. It is the sentence of the Court that the defendant be sentenced to the custody of the Bureau of Prisons for a term of 8 months. He is to receive credit for time served. Once released from imprisonment, he shall be placed on supervised release for a term of two years.... And specifically and most importantly, he shall comply with the rules and regulations of the Immigration and Naturalization Service, and if deported from this country, either voluntarily or involuntarily, as a condition of his supervised release he shall not reenter the United States illegally of course during the period of the two year court ordered supervision, and if he does, he will be cited for violation of the terms of his supervised release and subject to sentence by this Court.
Decisions preceding Koon have implied, if not explicitly required, that a district judge explain the reasons both for the departure and for the extent of the departure. This court‘s prior cases stated that this court would determine[s] reasonableness [of the extent of the departure] based, in part, on ‘the reasons for the imposition of the particular sentence as stated by the district court.’ United States v. Little, 61 F.3d 450, 453 (6th Cir.1995) (quoting United States v. Thomas, 24 F.3d 829, 833 (6th Cir.), cert. denied, 513 U.S. 976, 115 S.Ct. 453, 130 L.Ed.2d 362 (1994)). See also Fletcher, 15 F.3d at 556 (stating that reasonableness of a departure is determined by comparing general sentencing policy with the reasons for departure given by the district court); United States v. Feinman, 930 F.2d 495, 502 (6th Cir.1991) (same); United States v. Lassiter, 929 F.2d 267, 271 (6th Cir.1991) (district court‘s failure to justify the extent of its departure makes meaningful appellate review of the departure impossible). Other circuits have explicitly required district courts to justify the extent of their departures. United States v. Perkins, 963 F.2d 1523, 1528 (D.C.Cir.1992) ([t]he district court erred when it failed to give specific reasons explaining the extent of its departure.); United States v. Lira-Barraza, 941 F.2d 745, 751 (9th Cir.1991) (en banc) (To facilitate appellate review the district court‘s statement should include a reasoned explanation of the extent of the departure founded on the structure, standards and policies of the Act and Guidelines.); United States v. Ocasio, 914 F.2d 330, 336 (1st Cir. 1990) (Generally, a sentencing judge must articulate not only his or her reasons for departing from the GSR [Guideline Sentencing Range], but must also offer a rationale for the degree of departure.); United States v. Gardner, 905 F.2d 1432, 1437 (10th Cir.) (Thus the district court must articulate not only its reasons for a departure but also its reasons explaining the degree of departure leading to the ‘particular sentence’ imposed.), cert. denied, 498 U.S. 875, 111 S.Ct. 202, 112 L.Ed.2d 163 (1990). Although Koon has changed the standard of review to an abuse of discretion standard, the rationale for requiring an explanation of reasons for departure and the extent thereof still remains.
V. Conclusion
Although the government forfeited its objections to the sentence, the district court‘s downward departure based on diminished mental capacity constituted plain error. We will exercise our discretion to correct this plain error because the sentence far below the guideline range was based in part on this misconstruction of an applicable guideline. Therefore, Barajas-Nunez‘s sentence is VACATED and the case is REMANDED to the district court for resentencing in accordance with this opinion.
SILER, Circuit Judge, concurring in part and dissenting in part.
I concur with the majority opinion‘s conclusion that the district court erred in its downward departure on the sentence. I also agree with the conclusion in Part III that the prosecution forfeited its objection to the downward departure. I further agree with the application of the Koon decision, which precludes a finding of plain error when the district court departed under the lesser harms policy statement in
However, I respectfully dissent from Part IV of the majority opinion that concludes that it was plain error for the district court to have departed downward from the Guidelines under
Finding substantial rights may be as elusive as deciding what error is plain. In deciding whether substantial rights have been affected, [n]ormally, although perhaps not in every case, the defendant must make a specific showing of prejudice to satisfy the ‘affecting substantial rights’ prong of
United States v. Zeigler, 19 F.3d 486, 494 (10th Cir.), cert. denied, 513 U.S. 1003 (1994), is the only case cited in the majority opinion where a federal appellate court found plain error in favor of the government, when the government forfeited its objection to the sentence. There, the court did not even mention substantial rights and barely mentioned
Here, the sentence imposed by the district court, although erroneous, was not illegal, as it fit within the statutory limits of
Therefore, I would affirm the sentence in this case because I think that when the government forfeited its objection in the sentencing process, there was no plain error. The sentence was not illegal nor was there a significant change in the law, such as occurred in Deal. Moreover, substantial rights, as described in Olano, are those rights of the defendant at bar, not substantial rights of defendants in other cases.