*1 effects convinces us preemptive elusive and properly granted the district judgment for the defendants
summary common law the constitutional by deny- court did not err claims. The
tort complaint. amend his leave to Saul
AFFIRMED. America, STATES
UNITED
Plaintiff-Appellee, BRADY, Defendant-Appellant.
Leon 89-30074.
No. Appeals, Court of
Ninth Circuit. Dec. 1989.
Argued and Submitted March
Decided *2 Woodward, Mont., Billings, E.
Vernon defendant-appellant. Richter, Atty., P. Asst. Bill- Klaus Mont., ings, plaintiff-appellee. WALLACE, Judge, Before Chief NELSON, PREGERSON D.W. Judges. Circuit PREGERSON, Judge: Circuit Brady voluntary Leon was convicted danger- manslaughter and assault with a legality weapon. appeals ous He of his sentence, contending imper- its terms missibly depart Federal Sentenc- We conclude that the sen- Guidelines. incompatible imposed tence with therefore vacate the sen- Guidelines. We for further tence and remand this matter opinion. proceedings consistent with this
BACKGROUND Brady, an enrolled member Charles Tribe, Cheyenne Indian the Northern degree mur- July indicted in 1988 for first to commit mur- der and assault with intent other members on der of two Cheyenne Indian Reservation. Northern trial, Following jury convicted counts, charged but on the not on these voluntary man- lesser included offenses of dangerous “state mind” with commission slaughter and assault Finally, indicated that weapon. offenses. consecutively, should run February the U.S. Probation Of- concurrently, aggregating thus the maxi- required court the to the ficer submitted *3 year mum five sentence for assault with a report The calculated report. presentence dangerous weapon with maximum ten the 24 (including level the total offense year manslaughter. voluntary sentence for severity in offense be- two-level reduction Brady responsibility for the accepted cause Brady that contends under the Guide- offenses). report Brady’s also set The en- lines none of these bases for sentence “I.” category at history Under criminal permissible. argues hancement is He that calculations, applicable the sentenc- these accepted responsibility he crimes for the guideline range indicated sentence of ing convicted; for serious which he that to 63 months. problems in re- constitutional are involved minor, lying on uncounseled tribal convic- however, report, noted presentence The upward depart tions to from the Guide- upward departure range from this that an lines; unjustifi- sentence that the had been Brady’s the may be basis of ably firearm enhanced basis of the two court misdemean- convictions discharge; that the district erred in court report charges. suggested or assault departing upward finding Brady that that without consideration these tribal specific acted with the intent to kill both offenses, history Brady’s category criminal victims, despite jury the fact ac- that the adequately represent the serious- “does quitted Brady degree of first murder and past.” report of his criminal stat- ness murder; assault with intent to commit history category if the ed that were raised basis, run guideline the decision to the sentences con- range “II” on the months, secutively, concurrently, rather than violat- be 57 and if the cate- would to 71 “III,” the range procedure would ed mandated the Guide- gory were raised to lines. 63 to months. hearing, At the the district Brady ato total of 180
court sentenced
DISCUSSION
(15 years)
imprisonment
months
for
Disputed
I. Notice of
Elements
increasing
two offenses.
sentence
consider
the sentenc-
Before we
beyond
range
well
recommended
properly
court
from the sen-
deviated
presentence report,
challenged
the court
tencing range
presen-
recommended in the
probation
officer’s calculations and
report,
tence
we first
the issue of
address
departing upward
cause for
found
notice
of the factors
consider
First,
judge
did not
Guidelines.
believe
deciding
whether to
from
Brady
accepted responsibility
for
re-
Sentencing
The Guidelines
Guidelines.
offenses,
the committed
and therefore de-
quire
“[wjhen any
important
factor
reduction
nied
two-level
the total
reasonably
determination is
Second,
judge
level.
felt that
parties
given
dispute, the
shall be
category “I”
history
criminal
did not ade-
adequate opportunity
present
informa-
Brady’s
quately reflect the seriousness
regarding
tion
the court
that factor.”
history
tribal court
Commission,
into
not taken
account.
convictions were
Manual
[hereinafter U.S.S.G.]
Third,
upward
justification
depar-
for an
6A1.3(a), p.s. The
further
Guidelines,
re-
ture from the
state that
to the
that a firearm had been
ferred
fact
discharged
disputed
court shall resolve
when the offenses were com-
[t]he
Rule
Fourth,
judge departed
tencing
factors
accordance with
mitted.
32(a)(1),Fed.R.Crim.P____,
par-
notify the
on the defendant’s
the Guidelines based
sixty day suspended
to a
Brady
in a Montana
was sentenced
1. In
was convicted
driving
$300
the influence. He
and a
fine.
state
under
findings
provide
surprised by any ruling by
its tentative
the court
ties of
[on
opportunity for the submis-
sentencing].”
a reasonable
But in United States v. Raf-
objections
or written
before
Cir.1990),
sion of oral
ferty, 911 F.2d
imposition of sentence.
rejected the contention that the notice re-
quirement
apply
if
ground
does
6A1.3(b),p.s.2
U.S.S.G. §
departure should
readily appar-
have been
presentence report
stated
to the defendant.
ent
Thus
depar
ground
possible upward
one
have
notified
been
before
use of
tribal court con
ture —the
(1)
deny
the court intended
him the ac-
to increase his criminal
cat
victions
reduction,3 (2)
ceptance
responsibility
he
egory. Brady contends that
was not
depart from the Guidelines based on the
*4
sentencing hearing of
notified before the
court’s determination of
state of
on
the sen
several other factors relied
mind, (3) to enhance the sentence based on
tencing
the Guide
court to
discharge,
(4)
the firearm
to run the
that,
Brady argues
he was
lines.
consecutively
rather than concur-
factors,
given
they may
notice of these
not
rently. Only
acceptance
responsibili-
of
beyond
to enhance the sentence
not be used
ty
disputed
presents
issue
facts that should
report.
range
presentence
stated in the
evidentiary
at an
hearing
be resolved
on
agree.
We
v. Nuno-
remand. The trial court will of course be
(9th Cir.1989),
Para,
Id. at 1415 applies whether the convictionis based on a added). guilty plea following or on a verdict 3El.l(b). trial. In its commen- U.S.S.G. § government contends that no tary, the Commission lists several factors required Brady’s not tice should case deciding guide to had, par because “a full trial was and all accepted responsi- whether the defendant exactly positions ties knew what the bility her conduct. respective parties no for his or were.... There was comment, I).4 3E1.1, (n. way that the defendant claim to can be S.G. § 32(a)(1) 6A1.3(a) part: A 2. Fed.R.Crim.P. states in of the Guidelines. reject therefore the reduction sentencing hearing, At the the court shall af- presentence report without recommended ford the counsel for the defendant and the giving adequate and an the defendant notice attorney opportunity for the Government an opportunity present to information to the court. upon probation to comment officer’s de- relating termination and on other matters sentence. include, to, 4. These factors but are not limited following: adjustment responsibility 3. We note that the to, (a) voluntary "adjustment" or withdrawal is an rather than a termination reduction associations; from, “departure” conduct or the Guidelines from criminal such, (b) range. technically voluntary payment of restitution As the reduction does Nuno-Para, guilt; holding adjudication fall within the not requires (c) voluntary given admission to au- counsel be notice and truthful that defense opportunity in the offense and an to comment on all sentenc- thorities of involvement and ing "departures.” Nonetheless, conduct; defendant’s ac- related (d) voluntary ceptance responsibility important authorities surrender "factor offense; promptly after commission of the determination” under hearing on the ing proceedings, including a to fol sentencing court declined dispute issue. facts on this presentence low the recommendation ac given a two-level Brady be report III. Unnoticed Grounds Be responsibility reduction. ceptance of Departure Sentence responsibility re acceptance cause presentence included in permit duction was The Guidelines that this aggravating led to believe finds “an Brady when court report, kind, of a or to mitigating raised at circumstance not be issue would adequately taken into consider degree, denial of the trial hearing. The court’s level, ation Commission.” without in offense reduction two-level 3553(b). departure from the A deny the U.S.C. intent to Brady of its notice atypical only in an Guidelines is warranted adequate reduction, deprived case, i.e., con one in which a defendant’s to the present information opportunity “norm.” significantly differs from the duct responsibility. acceptance of his court on A(4)(b). depart U.S.S.G. Ch. Pt. When effec- position to review not in a We are Guidelines, the court must responsibility de- acceptance tively the imposition specified state “the reason for *5 us to defer to in this case. For termination from that described of a sentence different responsibility acceptance of a trial court’s particu in the with sufficient [Guidelines]” determination,5 record on this issue the appellate re larity permit meaningful “to court did not refer The trial must be clear. view” of the decision. United in the com- the factors outlined to of Wells, 878 F.2d States v. The record does not mentary to 3E1.1. curiam). Meaningful appel (per voluntarily Brady sur- us whether inform the court requires late review promptly after com- authorities rendered to in played factor the explain the role each offense, he offered the mission of Todd, departure decision. United States family before his to the Small restitution (9th Cir.1990)(remanding manslaughter, or most im- adjudication express court to its reasons “to the district voluntarily he and portantly, whether departure”). for the extent of the to authorities that he truthfully admitted case, the court In this and related in the offenses was involved month departed from the maximum 63 sen conduct.6 probation report in the tence referred to should have articu- The court totaling sentences consecutive justifications for de- lated its reasons and explained in months. The district court reduction, have nying (1) 3E1.1 had that the defendant general terms offenses, the sentenc- notified the defendant before his accepted responsibility for firearm, (3) findings, and ing hearing (2) discharged of these tentative had acted committing accept- hearing premeditation held a should have with convicted, (4) and he was responsibility issue. We vacate crimes for which ance of conviction record show responsibility had a acceptance denial of others. But the propensity to harm further sentenc- reduction and remand for great ie) entitled to deference voluntary is to authorities in the assistance comment, 3E1.1, (n.5). recovery on review." of the fruits and instrumentalities offense; disputed by point specifically is 6. This last (f) voluntary resignation from the office or Brady parties. court stated that of the position held the commission gave testimony or ac- as to his remorse never offense; and as- countability The defendant for the offense. (g) of the defendant’s conduct the timeliness timely statements of his he did make serts that responsibili- manifesting acceptance of during and in the conduct involvement ty- timely appar- were These statements after trial. probation ently accepted officer who "sentencing judge unique position in a to 5. A is reduction for ac- two-level responsibil allowed the 3E1.1 acceptance evaluate a defendant’s reason, responsibility. ceptance of ity. For this the determination of adjusted the combined extent each to indicate the court failed presentence increasing the sentence offense level calculated played factor report counting any adjustment the maximum almost 200% report. acceptance responsibility. probation Neither referred justi- party disputes figure. the reasons that the sen- needs to state Under table, 117 months.7 tencing guideline range fy enhancing the sentence indicated remand, we may recur on adjusted issues for an combined offense level of Because in turn each address 26 is 63-78 months for a criminal upward de- grounds “I,” court’s unnoticed category of 70-87 months for a crimi- parture.8 “II,” history category nal and 78-97 history category
months for a “III.” Concurrent A. Versus Consecutive
Sentences (c) (d) Subsections 5G1.2 deter- imposed mine whether the sentences are to consecu- The court sentenced consecutively concurrently. run for his two convic- tive maximum terms focus on the notion of “total subsections explain did not the deci- tions. The court commentary punishment,” defined sentences. The impose consecutive sion length the Guidelines as combined impose consecutive decision adjust- sentences as determined requirements. the Guidelines violates (c) ed combined offense level. Subsections de- specify procedures for The Guidelines (d) state: imposed in termining the sentences (c) imposed If the sentence on the count defendant has been con- cases in which the carrying highest statutory maximum *6 multiple counts. The Guidelines victed of adequate punish- is to achieve the total the specify whether sentences ment, then the on all counts First, concurrently consecutively. or run concurrently, except shall run to the ex- convicted a defendant has been whenever required by tent otherwise law. counts, adjusted multiple a “combined of (d) imposed If on the count the sentence Next, an ad- level” is calculated.9 carrying highest statutory maximum the made, any, if for the defen- justment is punishment, than the total then is less responsibility. The acceptance of dant’s imposed on one or more of the sentence is the “total offense resulting offense level consecutively, run the other counts shall Using offense level and level.” the total necessary pro- to the extent but history category, defendant’s criminal the equal to the duce a combined sentence range determined from the guideline the is respects punishment. total In all other range guideline table. Once all shall run concur- established, sentences on counts determines whether 5G1.2 concurrently rently, except to the extent otherwise run or the sentence should required by consecutively. law. (i.e., closely applicable guideline range If the counts are related involve is 51 7. harm”), responsibility acceptance "substantially of months with the the counts are same and 63 to 78 months without reduction acceptance "grouped” a combined under 3D1.2 before responsibility Fifteen of reduction. adjusted offense level is calculated. The enhancement therefore can be months of the argument against government brief limits its by the district court's denial of accounted for opposition concurrent in this case to responsibility acceptance reduction. "grouping” convictions. This two argument point. Brady does not misses a de novo standard of review
8. We assume
grouped
the two counts should be
contend that
determining
upon
the factors relied
they
substantially
involve
the same
the Guide
court to
from
Rather,
not).
(clearly they
Brady's
harm
do
permissible. United States v. Enri
lines are
quez-Munoz,
argument appropriately
on his entitle-
focuses
n. 4
Cir.
under
5G1.2.
ment to concurrent
1990).
standard
Even under a more deferential
review, however,
find the
departures
court’s
unwarranted.
5G1.2(c)-(d).
commentary
degree
preparation
and
planning
and the
U.S.S.G. §
fol-
requirements
these
as
offenses.” The court cited
elaborates
5K2.1
[the]
lows:
authority
of the Guidelines as
that “a sub-
the counts will
least one of
Usually, at
may
increase
be
if the
stantial
adequate to
statutory maximum
have a
risked,”
knowingly
death was intended or
punishment
of the total
imposition
permit
5K2.1, p.s.,
proceeded
The sen-
on that count.
sentence
as the
kill
the defendant’s intent
discuss
counts will
each
the other
tence on
stated:
district court
victims.
the total
at
lesser of
set
then be
case,
In this
defendant left the initial
statutory
applicable
and the
punishment
hunting
ri-
confrontation and obtained
maximum,
to run concur-
and made
procuring
fle from a relative. After
am-
longest
part
all or
rently with
munition, the
defendant went
search
sentence.
victims.
His intent
inflict seri-
5G1.2, comment.
U.S.S.G. §
injury or to kill the victims was
ous
dem-
determi
The concurrent-consecutive
began shooting
onstrated in
he
sen
down
this: consecutive
boils
nation
them as soon
he saw them. The de-
imposed only if “no count
tences are
multiple
fired
shots at
fendant
both vic-
adequate statutory maximum”
carries
hunting
range.
tims with a
rifle at close
by the
prescribed
to contain the
Brady knowingly
These events
show
level.
Id.
combined offense
adjusted
intended to kill both victims.
highest statu
count with the
this
maximum, voluntary manslaughter,
tory
finding
contends that
statutory maximum of 120 months.
has
directly
jury’s
contradicts
verdict
1112. Under
U.S.C. §
acquitted
degree
him of first
murder
“I,” “II,”
“HI,” and the sen
categories
assault with
to commit
intent
murder.
above, any sen
tencing ranges referred to
argues
upward departure
He
that an
range
guideline
will
tence set within
not be based on factu-
necessarily fall within
120 month statu
finding by
al
court that effec-
district
manslaughter.
voluntary
tory maximum
tively
verdict.
jury’s
overrules the
*7
sentencing
by
court thus erred
The
a district
Five other circuits allow
court
year
tencing Brady to consecutive 10 and 5
findings
during sentencing
to make
fact
of
months)
(totaling 180
his con-
on
sentences
rejected
implicitly
by
that have been
a
voluntary manslaughter and
victions for
See,
jury’s
guilty
e.g.,
not
verdict.
United
deadly
por-
weapon.10
a
assault with
Rodriguez-Gonzalez, 899 F.2d
v.
States
the sentence attributable to
tion of
—
(2d
denied,
177,
Cir.),
179-82
cert.
U.S.
that the
sentencing court’s determination
—,
127,
(1990);
111
v.
866 F.2d
B. The
Reconsider-
Court’s
Mocciola,
v.
United States
Mind
State
ation
(1st Cir.1989). But
of Defendant's
16-17
cf.
Perez,
v.
sentencing
upward
that
court stated
(“This
upheld
has
the trial
court’s
is warranted
Guidelines
mind,
acquittal as
long
of a
on the defendant’s state of
consideration
“based
5G1.2(a)
a
requires
was
mandates
consec-
that sentences
convicted
10. Section
consecutively
113(c)
multiple
imposed
if
counts
U.S.C.
and 18
utive sentence. See 18
requirement does
statute.
mandated
This
U.S.C.
1112.
apply
offenses for
here.
of the
not
Neither
analysis unpersuasive.
We find this
upon
relied
to enhance
acquittal
is not
sentence.”).11
pervert
system
justice
We would
our
of-
if
punish
allowed a defendant
to suffer
Ryan,
(3d
F.2d 604
charge
ment for a criminal
for which he or
Ryan,
jury
Cir.1989),
In
is illustrative.
acquitted.
recog
she was
Guidelines
possession of a
acquitted the defendant
voluntary manslaughter
nize that
is to be
intent
to distrib-
with
controlled substance
punished
severely
less
than murder
set
lesser
ute,
guilty
him
found
but
simple possession
ting
of a
a lower base offense level for volun
included offense
The defendant
ar-
manslaughter
substance.
tary
controlled
than for murder. A
in con-
the district court erred
gued “that
sentencing court should not be allowed to
drugs in de-
sidering
packaging of the
statutory
circumvent
directive
mak
sentencing
guidelines,
parting
ing
finding
any
a
of fact —under
standard
effect,
that,
maintaining
he was sen-
proof
jury
necessarily
has
re
—that
crime of which he had been
tenced for a
jected by
judgment
acquittal.12
its
claiming
guidelines
acquitted,
acknowledge
general
We
Id. approach.”
such an
prohibit
permit
sentencing
rejected the defendant’s
The Third Circuit
consider
evidence
factors
that,
It reasoned
before the
argument.
that are not elements of the offense of
Guidelines,
permit-
sentencing “court was
conviction. See U.S.S.G.
lB1.3(a).
But it
on counts of which
ted to consider evidence
permit
does not follow that
the Guidelines
acquitted
a defendant
to reconsider
a court
facts
sentenc-
Id.
at 609. The Third
defendant.”
rejected by
jury’s
that have
been
promulgating
concluded
Circuit
Otherwise,
guilty verdict.
time a
Guidelines,
Sentencing Commission in-
verdict,
judge disagreed
jury’s
with the
to con-
permit
courts
tended
judge could “reconsider”
critical elements
in deter-
to consider such information
tinue
of the offense to avoid the restrictions of
mining
from the Guide-
push
the sentence to the
lines.
simply
cases cited
our decision
limits the facts that a court
11. In two other
dissent,
Fonner,
may rely
imposing
United States v.
effectively Departure sentenced on the IV. Basis History and assault with intent gree murder Tribal Court the crimes commit murder —not theory Under the that defendant’s “[a] convicted, voluntary manslaughter he was past directly record of criminal conduct is dangerous weapon.13 awith and assault purposes relevant” to sentencing court’s de- Comprehensive We that the hold Criminal Control under intro, Act, A, comment., state mind termination Ch. Pt. U.S.S.G. is. which to impermissible computation factor on mandate a Guidelines points,” We remand this history leading from the Guidelines.14 a de- “criminal noting portion the sentence history catego- of a “criminal termination jury’s defendant’s ry.” range determination un- dispositive in the mind is sentenc- state of der the is determined from the ing hearing, and that the court using the to- table defendant’s may jury’s verdict history not circumvent tal offense level and criminal cate- on this departing gory. from Guidelines basis. A for a is conviction Discharge
C. Firearm
not counted
calculation of a defen-
sentencing,
history category.
At the time of
the court
dant’s criminal
U.S.S.G.
If, however,
4A1.2(i).
justified portion
upward departure
“reliable informa-
a
dis
tion
that the criminal
cate-
firearm
been
indicates
basis
gory
adequately
charged during the
of the sec
does not
reflect the seri-
commission
count,
deadly
past
weapon.
of the defendant’s
ond
assault with
ousness
so,
fact
the likelihoodthat
doing
the court overlooked the
conduct or
crimes,
will
other
computed adjusted
offense level on
commit
discharge
departing
taken
firearm
a sentence
this count had
consider
account,
applicable guideline
increasing
into
the offense level of
from the otherwise
4A1.3, p.s.
range.”
five
This increase
The Guide-
this count
levels.
departure may
adequately accounts for the firearm dis
lines note
such
concerning
charge
on information
“tribal of-
under
Guidelines. Because
based
computing
used in
defen-
only per-
fenses” not
*9
argued
Brady
court’s
set
offense level for
14.
13. The Guidelines
the base
(§ 2A1.2),
degree
approach contained
flaws as well.
murder at 33
and for
constitutional
second
statutory
degree
intent
second
Because we decide this issue on
assault' with
to commit
(§ 2A2.1).
grounds,
do
22
not reach
constitutional
murder at
The "combined offense
99,
Bernard,
89,
452
issues.
Oil Co. v.
U.S.
level” for both
as determined under
offenses
Gulf
2193, 2199,
(1981);
history category
99 S.Ct.
added).
plu
agree with
(emphasis
We
of an uncounseled conviction where the de
222,
Illinois,
v.
rality in Baldasar
446 U.S.
fendant did
waive counsel violates
(1980),
1585,
ing a sentence opinion. nonprison in itself for valid sentence, enhancing a is also invalid denied, cert. imprisonment.”), sentence WALLACE, Judge, concurring in Chief — 1496, U.S. —, 110 108 L.Ed.2d S.Ct. dissenting part part: and in Eck Contra States v. (1990). United 631 agree majority I with the that we must
ford, 910 (5th (holding F.2d 216 vacate the sentence and remand the case. prior decisions the Fifth Circuit give notice of The district failed to view Balda in rejected plurality’s have intent his sar that uncounseled misdemeanor convic required by used increase a term of tions cannot be Nuno-Para, 877 F.2d 1409, (9th Cir. imprisonment sentencing for a sub However, 1989). we have vacated offense). sequent criminal basis, need not the sentence this government’s argument is that main any ap decide other issues raised on prior played only a tribal convictions Brady’s allegations error should peal. departure. small role Because be considered the first instance did the extent not indicate judge, the bene district who will now have played depar each factor the sentence par briefing argument by fit of and ture, impossible pre it is to determine Therefore, separately. I ties. write cise enhancement attributable simply vacating Instead of the sentence the court’s reliance on the uncounseled con Nonetheless, remanding majority rules victions. we hold (em experiences”) This is not a case not learned from their where 1044, underlying prior added), denied, considered the conduct phasis cert. 459 U.S. determining convictions (1982); 74 L.Ed.2d S.Ct. give was warranted. We (D.Or.1988) Belgard, F.Supp. opinion constitutionality depar no ("I [, read 92 S.Ct. do not Tucker that basis. v. Fleish ture on See United States using prohibit probation officer from 589] man, (9th Cir.) (sentencing episodes led to about which later information court's consideration uncounseled Mex presentence preparing convictions in his convictions was court en ican not error where part, part, report”), rev’d in aff’d hanced sentences on that [defendants] the "fact Cir.1990). drug-related had been involved offenses
855 79, 91, Pennsylvania, lan judge’s future sentenc- 477 U.S. on the district all of 2411, 2418, (1986), prema- L.Ed.2d 67 ing rulings These are S.Ct. decisions. vacated, jury finding prosecu- the and therefore that has The sentence been ture. proven beyond not a reason- tion has facts judge’s of the sen- district denial thus the does not the doubt bar acceptance responsi- able tence reduction reconsidering during these sentenc- facts consecutive- bility, his decision sentence Mocciola, United States v. See ing. from the ly, grounds departure and his (1st Cir.1989) (Mocciola) (point- F.2d decided. Sentencing need not be Guidelines ing proof). different out standard presentations by and the coun- With notice sel, enter a sentence. may well different he Congress in- There is no evidence that yet By ruling on a sentence that has Sentencing tended the Guidelines to alter the risk of- imposed, majority the runs been existing by limiting scope law of evi- on reaching erroneous conclusions based a judge during dence available to sentenc- information. incomplete fact, applicable In ing. language of the compels opposite statute conclusion. to sen- example, the For decision whether provides limitation Section that “[n]o concurrently consecutively tence placed shall be information concern- factors, including rests on a number character, ing background, and conduct adjustments. and offense level person convicted of a of an offense which a Commission, See Sentencing may receive ... and consider for the Manual, 3D1.1-3D1.5, Guidelines §§ imposing purpose appropriate an (U.S.S.G.). (Nov.1990) Despite this 5G1.2 tence.” 18 U.S.C. This statute hypothesizes fact, majority Sentencing was effect Guide- depar- is “a drastic consecutive was incorporated, lines without an unreason- ture from the Guidelines and changes, into the Sentencing Reform Act. believe, however, I able sentence.” Sentencing Reform Act of See Pub.L. speculating refrain from about we should 98-473, 212(a)(1), II No. Title 98 Stat. sentences, and review the future (1984). As the drafters Sen- decision, judge’s in- district new point out, tencing Guidelines recodi- “[t]he upward departure, only cluding any when this fication of 1970 statute ... makes it it us. is before Congress that no limita- clear intended more A second and unfortunate unneces- placed the information tion would be majority’s sary excursion centers on the may an that a court consider permit “the theme that not] [do sentence under the [Guide- a court to reconsider facts sentenc- comment, 1B1.4, lines].” ing by a implicitly rejected that have been (backg’d.); see also (following id. IB 1.4 However, jury’s verdict.” mandate, by providing that congressional statute, position contrary to the Sentenc- determining ... “[i]n Guidelines, position and to the taken warranted, guidelines is the court ruling all circuits the issue. other limitation, any in- consider, without concerning background, formation were Before the defendant” character .conduct enacted, sentencing judge permitted added)). (emphasis evidence, range “in to consider a wide punishment crimi- to tailor the to the reader, order but position This seems clear to a crime.” nal than to rather majority differently. sees it Without Morgan, State v. authority, majority citing any carves Cir.1979). relevant evidence included exception Such and the an the statute out concerning Guidelines, which Sentencing information crimes for does not indeed .and Id. their acquitted. why had been are explain not bound Atkins, also United 1136-37; so, see doing majority creates terms. (9th Cir.1973). unnecessary Facts conflict. intercircuit merit” proven Fifth has found “without relevant to need Circuit evidence, by considering facts under McMil- argument preponderance *12 856 explains disagreement its majority a was for which defendant crime
lying a
ruling
circuits
on the
with all the other
jury’s
judge “overrode
acquitted,
judge
by arguing
permitting
issue
a fact
issue.” United
determination
disputed
facts
sentenc-
747,
to reconsider
F.2d
749
Juarez-Ortega, 866
v.
States
“punish[
the de-
ing
judge
enables
Instead,
Cir.1989).
]
the court held that
(5th
offense for which he or she
fendant for an
jury may have determined
“[ajlthough
acquitted.” This is untrue. The
been
proved
ha[s]
had not
all of
government
sentencing discretion is limited
judge’s
[charged] offense
be
elements of
the offense for
statutory maximum of
doubt,
a determina
such
yond a reasonable
convicted,
as well
which the defendant
preclude consider
necessarily
not
tion does
ap-
rigorous
standard
review
as
the offense at
underlying facts of
ation
guideline departures. See
plied to evaluate
agree.
circuits
other
sentencing.” Id. Six
Lira-Barraza, 897 F.2d
v.
United States
Fonner,
1330
920 F.2d
v.
States
United
(9th Cir.)
satisfy five
(departure must
981
may
prior
(7th
(judges
consider
banc, 909
step analysis), reh’g granted en
acquit
defendant’s
despite the
misconduct
(1990). In this
if on re-
F.2d 1370
arising out of that miscon
charges
tal
judge imposes the statu-
mand the district
duct);
Rodriguez-Gonza
v.
States
United
voluntary
tory
maximum sentence
(2d Cir.) (Guide
177,
lez,
179-82
899 F.2d
(120 months),
manslaughter count
this
principle that sen
changed
lines have not
still fall below the
tence will
proven by
only be
tencing factors need
sentence for second
Guidelines’sminimum
evidence), cert. de
preponderance
(135 months).
degree murder
—
See
127,
—,
112
nied,
111 S.Ct.
2A1.2, 2A1.3.
§§
Dawn,
(1990);
v.
L.Ed.2d 95
Cir.) (same),
1444,
(8th
1449-50
F.2d
897
majority’s
reason for aban
stated
— U.S. —,
denied,
(9th Cir.1987),
(1988).
I
108 S.Ct. here— justification for its creation
see no case
especially Sentencing in a apparent uniformity is an
where national lA4(b), argues p.s. (judge depart majority 12 that its U.S.S.G. § also in footnote also 2. proof, rare, depend cases); holding not on standard atypical does from Guidelines judicial merely 5K2.0, decision to “de- involves but p.s. (discussing grounds departure). for category of cannot be facts that fine one more by majority cases The other two cited court in sentence." a district used authority do not establish that we have the to However, majority pro- cited the cases information to limit the available support for the remarkable assertion vide no Alvarez-Cardenas, judges. In United appellate may, initia- on its own that an tive, (9th Cir.1990), we held that the 902 F.2d the sen- the information available to limit deportation possibility of could not be the basis Rather, they tencing judge. involve situations departure, deportation for a downward Guidelines, statute, Constitu- or the where the tion, speak question, not to offense in nor "does considering as the basis certain facts bar speak character." Id. at does it offender’s for sentence enhancement. This exclusion information of irrelevant Enriquez-Munoz, States v. In United statute, support finds both Cir.1990), (9th we that a held (direct- Guidelines. See 1B1.4 depart upward judge may the Guide to consider relevant to the courts evidence grounds the defendant lines on the "background, the de- character and conduct of “profit by greed. We reasoned motivated fendant”); (same); see also 28 18 U.S.C. 3661 motivating many primary if not most factor in crimes____ 994(d) (e) (listing irrelevant & factors U.S.C. When the Guide types of it [drafted sentencing). Finally, United States v. undoubtedly had in mind Commission line] the fact Cir.1990), Watt, (9th frequently engage people in crimi 910 F.2d 591-92 profit.” For Id. at 1361-62. determine whether nal conduct held that a must reasons, accepted responsibility we have held that similar for his has judges may the defen the basis of pre- considering the defendant’s offense without treatment, psychiatric be or dant’s need interpreta- plea We that this conduct. stressed possibility deportation. United cause necessary to avoid an tion of section 3E1.1 was (9th Doering, Cir. 909 F.2d States v. application the Guidelines. unconstitutional Sentencing 1990) (because Congress directed the Id. at 592. to consider "rehabilitation” Commission providing care, excluded in contrast information with ... medical defendants "needed cases, here—Bra- previous the evidence at issue treatment,” the need other correctional dy’s mind—is relevant state of psychiatric a factor over assistance was not and conduct” and a factor "character Commission); States v. looked lA4(b), atypical. this case See U.S.S.G. makes Ceja-Hernandez, Cir. impediment p.s. is there constitutional Nor ("When setting entry 1990) level for Therefore, considering this information. deportation, Commission after previous Ninth stands in stark contrast case practice certainly have been aware of the would disallowed sen- cases where we have Circuit they deporting promptly serve aliens after comply necessary to when tence enhancements sentences.”). follow di These decisions such rectly Guidelines, statute, Constitution. or the with the statute, which autho Thus, cre- majority precedent for its has no departures only the case when rizes the dis- theory restrict that our court can ated atypical U.S.C. circumstances. involves § considering the information 3553(b) (circumstance trict court from that was must be one consideration.”); adequately see issue. taken into "not