UNITED STATES of America, Plaintiff-Appellee, v. Laura P. LASSITER, Defendant-Appellant.
No. 90-3632
United States Court of Appeals, Sixth Circuit
Decided April 4, 1991
929 F.2d 267
Argued Feb. 11, 1991.
A.
Harris extended the “plain statement” rule of Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983), to federal habeas corpus review. Harris, 489 U.S. at 265, 109 S.Ct. at 1044. Under Harris, “a procedural default does not bar consideration of a federal claim on either direct or habeas review unless the last state court rendering a judgment in the case ‘clearly and expressly’ states that its judgment rests on a procedural bar.” Id. (emphasis added). Nevertheless, a federal court need not reach the merits of a habeas petition where the last state-court opinion clearly and expressly rested upon procedural default as an alternative ground. Harris, 489 U.S. at 264, n. 10, 109 S.Ct. at 1044, n. 10 (emphasis added). “In this way, a state court may reach a federal question without sacrificing its interest in finality, federalism, and comity.” Id.
Under Teague, new rules of criminal procedure generally may not be applied retroactively to cases on collateral review. Teague v. Lane, 489 U.S. 288, 310, 109 S.Ct. 1060, 1075, 103 L.Ed.2d 334 (1989). However, ”Teague does not bar retroactive application of rules when the case does not announce a new rule.” Hill v. McMackin, 893 F.2d 810, 813-14 (6th Cir.1989) (emphasis in original). We have held that the “rule announced in Harris is not a ‘new rule’ within the meaning of Teague,” and have applied the Harris rule retroactively to state court judgments that became final prior to Harris. Id. at 814.
B.
In determining whether the state court clearly and expressly rested its conclusion upon procedural default, we look to the last state court disposition providing reasons for its decision. Cf. Prihoda v. McCaughtry, 910 F.2d 1379, 1382-83 (7th Cir.1990); Harmon v. Barton, 894 F.2d 1268, 1272-74 (11th Cir.), cert. denied, U.S., 111 S.Ct. 96, 112 L.Ed.2d 68 (1990); but see Nunnemaker v. Ylst, 904 F.2d 473 (9th Cir.1990), cert. granted, U.S. —, 111 S.Ct. 384, 112 L.Ed.2d 394 (1990). Applying the Harris rule to a final noncommittal state court disposition would defeat the very purpose underlying Harris. The Harris Court intended to discourage state courts from interweaving state and federal grounds in their opinions and thereby complicating the federal courts’ task of determining whether the state court judgment rested upon an independent state ground. In noncommittally denying review, however, a higher state court either refuses to address the merits at all or tacitly upholds a lower court‘s reasoning, so that the problem of interwoven state and federal grounds does not arise.
Here, the last state court giving reasons for its disposition is the Michigan Court of Appeals. That court clearly and expressly rested its decision upon two alternative grounds: procedural default or substantive lack of merit. Thus, even if we were to find it appropriate to apply the Harris rule to McBee‘s situation, we would conclude that we need not reach the merits of his Sandstrom claim.
III.
Accordingly, for the foregoing reasons, the district court‘s denial of McBee‘s third petition for a writ of habeas corpus is AFFIRMED.
Robyn Jones, Marcia J. Harris (argued), Office of the U.S. Atty., Columbus, Ohio, for plaintiff-appellee.
Lewis W. Dye, Brent W. Yager (argued), Dye & Fleck, Columbus, Ohio, for defendant-appellant.
Before KENNEDY and JONES, Circuit Judges; and CHURCHILL, Senior District Judge.*
Laura Payne Lassiter (“defendant“) pled guilty to an Information charging her with one count of distribution of cocaine in violation of
I.
On August 24, 1988, police officers arrested defendant for distribution of cocaine. Defendant entered into a plea agreement with the government which provided that defendant would plead guilty to an Information charging one count of distribution of cocaine in violation of
On February 6, 1990, subsequent to her guilty plea and testimony but prior to her sentencing, police arrested defendant on state charges of illegal drug activity. At the pre-sentence hearing, the District Court noted that defendant admitted to possessing close to a kilogram of cocaine at the time of this arrest. Defendant was on bond at the time. Evidence also showed that officers found $82,000 at defendant‘s residence, money which the District Court found to be illegal drug proceeds.
The probation officer determined that defendant‘s criminal history points totaled three, thereby establishing a criminal history category of II. The base offense level was established at 26 and the probation officer recommended a two-point reduction for acceptance of responsibility. This resulted in a recommended sentencing range of 57 to 71 months.
The District Court held that defendant was not entitled to a reduction for acceptance of responsibility in view of her illegal conduct while on bond. The District Court also concluded that defendant‘s arrest while on bond warranted departure upward from the federal sentencing guidelines. The District Court examined the next higher criminal history category—category III—and found it too lenient. It set defendant‘s criminal history category at VI, the highest criminal history category established by the sentencing guidelines and a category requiring a minimum of 13 criminal history points. Based on these determinations, the District Court sentenced defendant to 144 months incarceration, and reduced this sentence to 120 months because of defendant‘s substantial assistance to the government.1
II.
Defendant raises two issues on appeal. First, defendant argues that the District Court erred by denying her a two-point reduction for acceptance of responsibility.2 Second, defendant contends that the District Court erred by departing upward from the federal sentencing guidelines.3
A guilty plea does not entitle a defendant to a reduction based on acceptance of responsibility as a matter of right. United States v. Christoph, 904 F.2d 1036 (6th Cir.1990), cert. denied, U.S. -, 111 S.Ct. 713, 112 L.Ed.2d 702 (1991). The burden rests with defendant to show that she has accepted responsibility for the crime committed. Id. Whether a defendant has accepted responsibility is a factual question subject to a clearly erroneous standard of review. United States v. Wilson, 878 F.2d 921 (6th Cir.1989). A sentencing judge‘s decision will be reversed only if it is without foundation. Id. at 923.
The District Court did not err when it denied defendant a two-point reduction for acceptance of responsibility. Defendant‘s acts while on bond awaiting sentencing are not indicative of a person who is truly remorseful about her previous criminal conduct. See United States v. Franklin, 902 F.2d 501 (7th Cir.), cert. denied, U.S. -, 111 S.Ct. 274, 112 L.Ed.2d 229 (1990).
B. Upward Departure
Congress sought to achieve three objectives by passing the
[T]he sentencing court may impose a sentence outside the range established by the applicable guideline, if 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.” . . . Similarly, the court may depart from the guidelines even though the reason for departure is taken into consideration in the guidelines . . . , if the court determines that, in light of unusual circumstances, the guideline level attached to that factor is inadequate.
If reliable information indicates that the criminal history category does not adequately reflect the seriousness of the defendant‘s past criminal conduct or the likelihood that the defendant will commit other crimes, the court may consider imposing a sentence departing from the otherwise applicable guideline range. Such information may include, but is not limited to, information concerning:
* * * * * *
(e) prior similar adult criminal conduct not resulting in a criminal conviction.
This Court applies a three-part test to determine the propriety of a sentencing court‘s upward departure from the Sentencing Guidelines: (1) whether the case is sufficiently unusual to warrant departure (a question of law reviewed de novo); (2) whether the circumstances warranting departure actually exist in the particular case (a question of fact reviewed under the clearly erroneous standard); and (3) whether the departure is reasonable. United States v. Rodriguez, 882 F.2d 1059 (6th Cir.1989), cert. denied, U.S. -, 110 S.Ct. 1144, 107 L.Ed.2d 1048 (1990). A sentencing court must examine the next higher criminal history category when departing from the guidelines, and if departing beyond this next level, the sentencing court must demonstrate that it found the sentence imposed by the next higher level too lenient. United States v. Kennedy, 893 F.2d 825 (6th Cir.1990). We examine a court‘s stated reasons for departure beyond the next higher level “more closely.” Id. We hold the District Court‘s departure appropriate in light of the first two requirements but deficient in light of the third requirement.
Moreover, requiring a reasoned statement by the sentencing court promotes meaningful review by an appellate court. The need and ability to conduct meaningful review is particularly important under these circumstances, in which we must examine “more closely” a sentencing court‘s decision to depart beyond the next higher criminal history category otherwise applicable. In keeping with our heightened standard of review, the District Court must explain why placement of defendant in either category III, IV or V would be inadequate.
Second, the District Court‘s sentence does not appear to comport with the purpose and goals underlying the Sentencing Guidelines. Obviously, the Sentencing Guidelines cannot account for every possible situation. The ability of a sentencing court to depart from the guidelines is an appropriate and necessary allowance for this shortcoming. This allowance, however, is not without limitation. Among other requirements, a sentencing court‘s departure must pass muster based on a standard of “reasonableness.” Whatever else this standard may embody, it requires a sentencing court to “adequately link its departure to the structure of the guidelines,” thereby ensuring a “reasonable” degree of departure and furthering the goal of uniformity in sentencing. United States v. Scott, 914 F.2d 959, 963 (7th Cir.1990) (explaining United States v. Thomas, 906 F.2d 323 (7th Cir.1990)); United States v. Cervantes, 878 F.2d 50 (2d Cir.1989). By way of comparison, if the sequence of the crimes had been reversed, that is, if defendant had been convicted on state charges and committed a federal crime while on bond awaiting sentencing for the state conviction, the Sentencing Guidelines would require the addition of five criminal history points to defendant‘s total of three at the sentencing hearing for the federal crime. See
In sum, we find that the District Court failed to demonstrate that the sentences imposed by criminal history categories less than VI would be too lenient and to link adequately its departure to the structure and objectives of the Sentencing Guidelines. Accordingly, we VACATE defendant‘s sentence and REMAND this case for resentencing.
JONES, Circuit Judge, concurring.
While I fully concur in the majority‘s disposition of this case, I write separately to clarify the majority‘s admonition that a sentencing court must take account of “any sentence imposed by another court” for the purposes of determining the reasonableness of or necessity for a departure from the Sentencing Guidelines. In this case, the defendant wrote a letter to the district court confessing in full to the crimes she was charged with in the state criminal proceeding. Thus, the court was fully aware that Lassiter would receive a state sentence for her drug activity on bail independent of any adjustment it made to her federal sentence by way of an upward departure. As a result of the district court‘s failure to take account of Lassiter‘s
In my view, it is the majority‘s intention to reduce the likelihood of such excessive sentencing by requiring district courts to consider sentences imposed, or likely to be imposed by other courts, when deciding on the degree of or the need for an upward departure. In this case, since the trial court was essentially certain that a state sentence would be imposed, it might have been more prudent for the court to delay sentencing until after the state proceeding. I note that district courts should exercise their discretion in deciding whether to postpone federal sentencing with an eye to whether the postponement will result in inadvertently delaying the defendant‘s right to appeal. However, where as here, a delay in federal sentencing might have eliminated the necessity for this appeal, a district court should consider this option before moving down the path toward a potentially unreasonable upward departure.
CORNELIA G. KENNEDY
UNITED STATES CIRCUIT JUDGE