United States v. John William Goff

insignificant errors cannot be constitutionally viola- create a constitutional

aggregated to Lockhart,

tion. See Girtman Thus, argument a matter of law.

fails as

VII.

Finally, argues that the dis Stewart adjusted it his offense court erred when

trict the victim upward three levels because

level A assault was an “official victim.”

of the adjust a defen permitted court is

district if in this manner “the

dant’s offense level ... and the government officer

victim was motivated such

offense of conviction was 3A1.2(a). con Stewart

status.” U.S.S.G. guideline applies to offi

tends that this government, the federal not to offi

cers of government.

cers of a state Stewart authority ‍​‌​‌​​‌‌​‌​​‌​‌‌‌​​‌​​​​​‌‌​‌​​‌‌‌‌‌‌​​‌​​‌​​‌‌​‍argument, no for this and we

cited guide absolutely limiting no basis for

see suggests. manner

line Stewart adjusted court did not err when district ground that

Stеwart’s offense level on the deputy “official victim.” director was an

VIII. error, conclusion, having found no

affirm and the sentence Stewart’s conviction

imposed by the court. America,

UNITED STATES

Plaintiff-Appellant, GOFF, Defendant-Appellee.

John William

No. 93-2039. Appeals, Court of

Eighth Circuit. Sept.

Submitted 1993. April

Decided 1994.

Rehearing Suggestion Rehearing

En 1994. Banc Denied June

919 Jones, DC, Washington, Janet argued, ‍​‌​‌​​‌‌​‌​​‌​‌‌‌​​‌​​​​​‌‌​‌​​‌‌‌‌‌‌​​‌​​‌​​‌‌​‍for appellant. Merz, Louis, MO, argued,

Charles St. for appellee. FAGG, HEANEY, Judge,

Before Circuit LOKEN, Judge, Senior Circuit and Circuit Judge.

LOKEN, Judge. Circuit pleaded guilty John William to one money laundering count of in violation of 18 1956(a). § U.S.C. the district court determined Goffs Guidelines sen- range prison tence is 51 to 63 months § Finding range under U.S.S.G. 2S1.1. harsh;” “unduly departed the court down- ward and sentenced Goff to six months’ in- release, citing carceration with work as de- parture prior factors the absenсe of convic- tions, “relatively the minor” nature the offense, age, advanced and the need to family. government ap- care for his The peals, arguing upon that the reasons relied dp by the court not down- departure. We reverse. ward may depart A district court from the aggravating Guidelines when “there exists an kind, mitigating circumstance of a or to a degree, adequately taken into consider- by Sentencing ation Commission for- mulating guidelines.” 18 U.S.C. 3553(b). § Parts 5H1 and 5K2 the Guide- many factors lines define the relevance of decision. Departures are reserved for unusu eases, al those outside the “heartland” carved by the remainder of the Guidelines. See Ch. 4(b). A, They are “intended Pt. comment. Justice, quite to be rare.” United States v. (8th denied, Cir.), cert. 493 107 L.Ed.2d 360 U.S. S.Ct. (1989). review de novo whether thе fac We by upon tors the district court are relied permissible grounds departure. Maul-Valverde, illegal drug proceeds, were Salsman’s funds 2S1.1(b)(1), words, § one addi In other see U.S.S.G. tional ‍​‌​‌​​‌‌​‌​​‌​‌‌‌​​‌​​​​​‌‌​‌​​‌‌‌‌‌‌​​‌​​‌​​‌‌​‍level because he laundered more than falls outside the Guidelines’ partiсular case $100,000, 2S1.1(b)(2)(B), including must see an issue of law.1 heartland is upon by charged in dismissed Count II. Goff factor relied the dis sum examine each objections granting written to these PSR find in Goff a downward de filed trict court evidentiary ings, hearing no was held. parture. but History. A In addition Criminal the district court ac History Category in placing to Goff Criminal departed cepted findings the but be PSR’s I, gave district court as a reason for the “relatively minor” cause of Goff’s offense: prior departure the fact that Goff had “no “[Mjoney laundering takes all kinds оf that this Court must count.” The convictions forms from bank accounts and all Swiss expressly provide: Guidelines that, major things kinds of other like to range limit of the for Criminal The lower relatively something minor. And I that’s History Category I is set for a first offend- relatively think this is minor.” er with the lowest risk of recidivism. Therefore, departure a below the lower appeal, argues departure that this On Goff guideline range limit of the for Criminal appropriate, citing United v. was History Category I on the basis of the (2d Cir.1991). Skinner, 946 F.2d 176 In adequacy history ap- of criminal cannot be Skinner, held that a downward court propriate. § departure appropriate from would 2S1.1 be added). 4A1.3, p.s. (emphasis depar- § language for conduct that violated the literal applica- ture for this reason “is an incorrect § of 18 U.S.C. 1956 but was nоt intended to guidelines.” tion of the United States v. activity promote fur- conceal criminal or to (8th Cir.1993). Simpson, 7 F.3d ther crimes. also United States White (8th Cir.1993) Buffalo, 10 F.3d pleaded guilty-to B. Minor Goff Offense. (downward may be warranted un- money laundering I of a Count two-count §der 5K2.11 for conduct that is “techni- alleged count indictment. This that Goff had unlawful”). cally suggests ap- that an Goff 1956(a)(1)(B)(ii)by § violated 18 ad U.S.C. propriate base offense level this case client, vising drug his dealer Michael Sals- prescribed would be the level for curren- $15,000 man, deposit tо structure a cash so cy structuring transaction at offenses filing currency as to avoid the of a transac sentencing. time of Goff’s See U.S.S.G. report tion the Internal Revenue Ser with 2S1.3; ¶ § App. C. 490. change-of-plea hearing, At the vice. suspecting admitted that Sаlsman’s funds misplaced, Goffs reliance on Skinner is proceeds illegal activity, were the of but de squarely his offense conduct is within the- knowing engaged in nied that Salsman had prohibitions § change-of- of 1956. At the drug exchange plea, crimes. In for his plea hearing, thаt Goff admitted he knew or government dropped count two of the indict suspected bought property had Salsman ment, charged helping which Goff with Sals- proceeds illegal activity, with the of and that larger money. man launder a far sum of currency filing he told transaction Salsman assigned report get The PSR Goff a base offense level “could them all in trouble.” 2S1.1(a)(2). circumstances, § Disregarding of 20 under these Goffs conduct was not Therefore, change-of-plea proceedings, merely technically also the PSR as- unlawful. his sessed two enhancements —it increased base offense level must be determined 2S1.1, § Goffs BOL three levels because he knew accordance with and a downward Rivera, See, adopted e.g., 1. In United States 994 F.2d that modification. (1st Cir.1993), Groene, (8th Cir.1993). thе First Circuit modified this 998 F.2d 604 give greater sentencing “to standard deference opinion agrees of The author with the Rivera (and court determinations óf whether the extent adop- but modification does not believe its which) given circumstances make a case ‘un- change tion would the result in this case. ” ordinary.' usual’ 'not circuit not This worth, departure may upon not based the “rela- and a substantial net in any event, tively “personal minor” nature of his offense. financial ... difficulties do not warrant a decrease in sentence.” Although criminal ac- the nature Goff’s 5K2.12, § p.s. Though we do not underesti- tivity ‍​‌​‌​​‌‌​‌​​‌​‌‌‌​​‌​​​​​‌‌​‌​​‌‌‌‌‌‌​​‌​​‌​​‌‌​‍adequately taken into consid- has been hardship mate the that Goff’s incarceration 2S1.1, may §in and therefore eration family, family responsibili- will cause his departure, we are concerned that ties are not outside the heartland of acceptance the district court’s blanket of the Sentencing cases that Commission has PSR, including the 4-level enhancements un- Neil, Compare considered. United States v. 2Sl.l(b), specifically der to which Goff ob- jected, may upon have been based the court’s downward, depart intention to rather than a Age. D. Like a defendant’s govern- careful consideration whether the family responsibilities, age his is not “ordi proof respect ment met its burden of with to narily determining relevant” in whether to Therefore, remand, those enhancements. on 5H1.1, depart. § p.s.2 At sentencing, Goff encouraged the district court is to reconsider years good was 67 in old and health. We proper those enhancements on a fаctual rec- consistently have departures denied to Montanye, ord. See United States v. 996 age in healthy group, defendants this (8th Cir.1993) (en banc). 190, F.2d 192-93 Tucker, 278, v. United States 986 F.2d 280 Family Responsibilities. C. (8th Cir.) (reversing departure downward “Family responsibilities ties and ... are not imposing six-yeаr statutory and maximum ordinarily determining relevant in whether a defendant), year-old sentence on 67 de cert. applicable sentence should be outside the —nied, -, 76, 114 U.S. S.Ct. 126 5H1.6, range.” § guideline p.s. (1993); Harrison, L.Ed.2d 44 970 F.2d at 447 “[extraordinary family may circumstances” (no departure healthy, warranted for 64 departure. a downward United defendant). year-old age justi cannot Vidrickson, States v. 998 F.2d 603 fy the district departure. court’s downward Cir.1993). At the .time of his Having carefully considered the record and sons, supporting young Goff was three and court, upon by the fаctors relied the district begun receiving Security his wife had Social factors, that we conclude those disability depression benefits for a disorder combination, singly in viewed do not take retired, panic and attacks. With Goff this case outside the Guidelines’ heartland so family’s primary source of income is rental departure that a downward is warranted. property manages. that Goff reversed, Accordingly, the sentence is and agree We cannot with the district the case remanded to the is district court family court that this situation is so extraor to with instructions resentence Goff within dinary departure. as to warrant a downward appropriate range. Guidelines “All families suffer when one of their mem goes prison.” bers' to United v. HEANEY, Judge, Senior Circuit Shortt, (8th Cir.1990) 919 F.2d 1328 concurring dissenting. and (reversing dеparture downward for defen join opinion I all of the court’s but section income, family dant who was sole source of family responsibilities. particularly C on I farm, helped his disabled father to and whose abuse). agree expressed in with the view footnоte history wife had a of substance given one that deference should be to the single parent Even a defendant’s status as a finding that the district court’s circumstances departure. does warrant a downward Harrison, particular or out See United States v. оf case make F.2d unusual of .a (8th Cir.1992); ordinary. apples or not one 447-48 United States v. John Whether son, (8th Cir.1990). family 908 F.2d The that notion to the circumstances case, family multiple sources of income I believe the facts warrant policy goes age punishment 2. This statеment on to state of as form might such home confinement “may [depart costly equally be a to than downward] reason when efficient as and less elderly the defendant is and infirm and where a incarceration.” allowing precedents lean toward this de- dеpart on the basis court’s decision Sclamo, Although family responsibilities. parture. See United States of Goffs (1st Cir.1993); resentencing because 973-74 must remand for (3d Gaskill, that I of factors 991 F.2d 82 the court’s consideration are, course, precedents, stingier under our agrеe precedents are not available much Our district court should be allowed allow the dis- I believe the in the discretion we choose to solely departing matters, on the basis of to consider even under trict courts in these but It is on basis that family admittedly circumstances. precedents, which do not those compelled I to dissent. am departure for several of the reasons allow court, relied on the district ordinary an case of This is not family defendant’s unusual re- based on the intangi- suffering tangible or family whatever strongest sponsibilities ‍​‌​‌​​‌‌​‌​​‌​‌‌‌​​‌​​​​​‌‌​‌​​‌‌‌‌‌‌​​‌​​‌​​‌‌​‍is warranted. The ordinarily accompanies incarcera- harm ble against departure is Eighth Circuit case of its members. The district tion of one Harrison, probably presence was abso- court found that Goffs (8th Cir.1992), but in that case thе court family’s well-being, necessary lutely specifically that most of the assertions noted departed on that basis. The issue is not family inability involving the other members’ family financially, will suffer whether Goffs young question to care for the children family responsibilities are but whether his undocumented. See id. at 448 n. 4. were wife, extraordinary. thirty years His who is case, ample this the district court had evi- junior, by was found the district court to findings dence on which to base its entirely for disabled and unable to care herself and that she Goffs wife was disabled totally their children. She has been declared unable to care for their chil- was therefore by Security disabled the Social Administra- family un- responsibilities dren. are Goffs psycho- tion due to her serious emotional and usual, simply our ex- and rather than follow lоgical problems. In to his disabled addition isting precedents question, this the court on wife, responsible young Goff is three chil- through today another avenue which closes time of his children dren. might rightfully otherwise ex- courts old, old, years years four and six were eleven sentencing. ercise their discretion in personnel months old. Health care familiar with the situation stated in no- uncertain Congress did not intend to make calculat- that his wife is unable to care for the terms yet ing judges, of our district time machines children. again and time this court has seen fit to question This leaves the these courts, remove from the district discretion any circumstances are different than those of court, subject by to review this where is which, single-parent family, unbelievably prosecutors and transfer that discretion tо me, absolutely ordinary, we have held to be utterly whose actions remain unreviewable. exception. apparently The district without Today pulls plank another from the court court believed that these circumstances are judges, mandating that bеneath the district sufficiently departure, different warrant they guidelines, in the sea of the in- swim and I cannot conclude as matter of law structing any attempt them that to reach fact, finding this was error. I believe that higher ground and exercise their informed fully support these departure, circumstances judgment about the facts of a defendant’s life and we should remand to the district court, again will I be frustrated degree. court to determine the compelled to am dissent. appeal being heard in the

Were Circuits, government

Second or Tenth practically

would be forced to concede

propriety under these circum Johnson,

stances. See (2d Cir.1992); 127-30 Pena, 1494-95 Circuits, In the First and Third

Case Details

Case Name: United States v. John William Goff

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Jun 30, 1994

Citation: 20 F.3d 918

Docket Number: 93-2039

Court Abbreviation: 8th Cir.