UNITED STATES оf America, Plaintiff-Appellant, v. Lloyd NELSON, Defendant-Appellee.
No. 89-5270.
United States Court of Appeals, Sixth Circuit.
Argued March 16, 1990. Decided Nov. 20, 1990.
919 F.2d 1269
Richard K. Mabee (argued), Chattanooga, Tenn., for defendant-appellee.
Before WELLFORD and RYAN, Circuit Judges, and EDWARDS, Senior Circuit Judge.
RYAN, Circuit Judge.
The government appeals from defendant‘s sentence imposed pursuant to the United States Sentencing Commission‘s Sentencing Guidelines (“the guidelines“). We are asked to review the district court‘s downward departure from the guidelines for the stated purpose of imposing upon defendant a sentence “in line” with sentences imposed upon his co-conspirators. We conclude that, while such a departure may be permitted under the guidelines in some circumstances, it was not proper in this case. We shall, therefore, vacate the sentence imposed and remand for resentencing.
I.
On November 3, 1988, a jury convicted Lloyd Nelson on one count of conspiracy to manufacture methamphetamine, in violation of
Following his indictment, trial, and conviction, Nelson was sentenced to forty-two months in prison, to be followed by three years of supervised release, during which he must perform 100 hours of community service and participate in a drug rehabilitation program. He was also assessed a $50 special fee. Ray and Lisa Loudermilk and Ms. Grape, who hаd pled guilty to the offense, received sentences of sixty, forty-eight, and thirty months, respectively. These sentences were downward departures from guidelines prescribed sentencing ranges of 188 to 235, 121 to 151, and 97 to 121 months, respectively, and were based upon the Loudermilks’ and Grape‘s extensive cooperation with authorities and acceptance of responsibility for their crimes. See United States Sentencing Commission‘s Sentencing Guidelines Manual, §§ 5K1.1 at 5.41 and 3E1.1 at 3.23 (rev. ed. 1989) [hereinafter Guidelines Manual].
The district court determined that the guidelines provided for a sentence for Nelson of incarceration for a period between 151 to 188 months, and a fine from $17,500 to $175,000. The guidelines range was de
The government appeals the sentence.1 It argues that the district court‘s reason for departing downward from the guidelines is prohibited as a matter of law and, even if it is not, the court clearly erred in finding Nelson entitled to lenity, given the facts of the case. The government also claims that the forty-two month sentence, almost one-fifth of the 151 to 188 month sentence the court deemed was proper for Nelson under the guidelines, and the lack of any fine, was unreasonable.
II.
In reviewing appeals from sentences which are the result of departures from the guidelines, a number of panels of this court have relied on the three-pronged analysis originally set forth in United States v. Diaz-Villafane, 874 F.2d 43, 49 (1st Cir.), cert. denied, 493 U.S. 862, 110 S.Ct. 177, 107 L.Ed.2d 133 (1989). The Diaz-Villafane approach has been used in upward departure situations, see, e.g., United States v. Joan, 883 F.2d 491, 494 (6th Cir. 1989); United States v. Rodriguez, 882 F.2d 1059, 1067 (6th Cir.1989), cert. denied, 494 U.S. 1021, 110 S.Ct. 1144, 107 L.Ed.2d 1048 (1990); and in downward departure cases. See, e.g., United States v. Brewer, 899 F.2d 503, 506 (6th Cir.1990); United States v. Hays, 899 F.2d 515, 519 (6th Cir. 1990).
The Diaz-Villafane approach calls for an appellate court to test a district court‘s sentence under three separate standards of review:
First, we assay the circumstances relied on by the district court in determining that the case is sufficiently “unusual” to warrant departure. That review is essentially plenary: whether or not circumstances are of a kind or degree that they may appropriately be relied upon to justify departure is, we think, a question of law.
Second, we determine whether the circumstances, if conceptually proper, actually exist in the particular case. That assessment involves fact finding and the trier‘s determinations may be set aside only for clear error.
Third, once we have assured ourselves that the sentencing court considered circumstances appropriate to the departure equation and that those factors enjoyed adequate record support, the direction and degree of departure must, on appeal, be measured by a standard of reasonableness.
Diaz-Villafane, 874 F.2d at 49.
The author‘s misgivings about the Diaz-Villafane review methodology notwith
A.
Our first duty in applying the first prong of Diaz-Villafane is to identify the “circumstances” relied upon by the trial court in departing from the guidelines and then to decide, de novo, whether those circumstances are sufficiently “unusual” to justify the departure. Diaz-Villafane, 874 F.2d at 49; Rodriguez, 882 F.2d at 1067.
The district court described the circumstance justifying departure as follows:
The Court, however, has decided in this case that some departure is warranted under Sectiоn 5K2 of the guidelines. The Court finds that a departure is warranted to bring this Defendant‘s sentence in line with the sentences that the Court has already imposed on other defendants in connection with this same methamphetamine conspiracy, and the Court will set that sentence at 42 months, which is a downward departure from the minimum 151 months called for by the guidelines.
The first question, then, is whether, as a matter of law, the district court‘s desire to bring the sentence of one of several co-conspirators into general conformity with the range of sentences imposed upon his confederates is a “circumstance” sufficiently “unusual” to justify dеparture.3
Of all the purposes that induced Congress to enact the Sentencing Reform Act,
The Sentencing Commission attempted to achieve these goals by assembling a vast array of characteristics organized in a way that purportedly categorizes similar defendants similarly. For example, the elaborate drug quantity table аppended to Guidelines Manual § 2D1.1 at 2.40-2.45 is one means of categorizing drug offenders who are convicted of manufacturing or dealing approximately the same amount of controlled substances. Offenders having comparable criminal histories fit within any one of six classes. See Guidelines Manual §§ 4A1.1 to 4B1.3 at 4.1-4.13. Offenders may also be grouped according to whether they did or did not obstruct justice, see Guidelines Manual § 3C1.1 at 3.9, whether they were major or minor participants in the underlying crime, see Guidelines Manual §§ 3B1.1 and 3B1.2 at 3.5-3.6, and whether or not they accepted responsibility for their transgressions, see Guidelines Manual § 3E1.1 at 3.23; thеse latter considerations being an attempt to tailor personal characteristics to individual defendants.
Congress authorized the district courts to depart from the guidelines as follows:
The [sentencing] court shall impose a sentence of the kind, and within the range [of the guidelines] . . . unless 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. In determining whether a circumstance was adequately taken into consideration, the court shall consider only the sentencing guidelines, policy statements, and official commentary of the Sentencing Commission.
The Sentencing Commission then applied this policy in drafting its final version of the guidelines’ departure provision:
Under
Guidelines Manual § 5K2.0 at 5.42-5.43.
The Sentencing Commission justified the need for broadly authorizing departures when it said:
[I]n principal, the Commission . . . could prevent a court from using [specific listed factors] . . . as grounds for departure. In this initial set of guidelines, however, the Commission does not so limit the courts’ departure powers. The Commission intends the sentencing courts to treat each guideline as carving out a “heartland,” a set of typical cases embodying the conduct that each guideline describes. When the court finds an atypical case, one to which a particular guideline linguistically applies but where conduct significantly differs from the norm, the court may consider whether a departure is warranted. . . . [H]owever, the Commission does not intend to limit the kinds of factors . . . that could constitute grounds for departure in an unusual case.
Guidelines Manual Policy Statement at 1.6.
Since there is a virtual rebuttable presumption of “appropriate” or “reasoned” uniformity in the guidelines, it should be the unusual case whose facts permit, even require, sentencing judges to depart from the guidelines in order to achieve reasoned uniformity of sentence among similarly situated criminаl actors. But it is precisely the “unusual” case for which departure authority exists. The district courts enjoy a unique role in applying the guidelines.
Fоr these reasons, we conclude that the district courts generally and, perforce, the district court in this case, are not precluded as a matter of law from departing from the guidelines in order to generally conform one conspirator‘s sentence to the sentences imposed on his co-conspirators.
B.
The second Diaz-Villafane prong requires us to determine whether the district court clearly erred in finding that the unusual “circumstance” relied upon for the departure decision in this case “actually existed.” Clearly, it did not. The circumstance that dictated the departure decision was the great disparity betweеn the sentences given defendant‘s co-conspirators and the guidelines range appropriate for defendant‘s sentence. There is no question that a very considerable disparity exists between the twelve and one-half years to fifteen and one-half years sentence that would have been imposed upon the defendant under the guidelines, and the sixty, forty-eight, and thirty months sentences that were imposed upon his co-conspirators.
The question that does remain is whether the “degree,” as Diaz-Villafane puts it, of the district court‘s departure was, in the circumstances, “reasonable.” Resolution of that question takes us to the third prong of the Diaz-Villafane formula.
C.
We must, under prong III, determine whеther the district court‘s decision to sentence Nelson to nearly one-fifth the period of confinement he would otherwise have received under the guidelines, for the purpose of conforming his sentence, generally, with the sentences of his co-conspirators, was reasonable. This third of the Diaz-Villafane three standards of review in one is a criterion for appellate scrutiny. Apparently it does not call for testing the “degree” of the district court‘s departure for abuse of discretion; rather, the test appears simply to be whether the amount of the departure is “agreeable to or in acсord with reason or sound judgment; logical.”5 It is, as Diaz-Villafane puts it, a “judgment call.”
The reasonableness prong of the Diaz-Villafane test derives from current
Considering the first sentencing factor, the nature of the offense for which Nelson was convicted, we note that Nelson‘s crime was the same as that for which all the defendants were convicted: conspiracy to manufacture substantial quantities of methamphetamine, violating
As previously noted, the confinement pоrtion of the sentence Nelson would have received had he been sentenced according to the guidelines was some seven and one-half to ten and one-half years longer than the sentence actually imposed on Nelson‘s highest-sentenced co-conspirators. Under the guidelines, he could have been sentenced from twelve and one-half to fifteen and one-half years, while his co-conspirators were sentenced to five, four, and two and one-half years. The guidelines also called for a fine of $17,500 to $175,000 for Nelson; his co-defendants received no fines.
The sentences imрosed on Nelson‘s co-conspirators were very substantial reductions from the sentences recommended under the guidelines. Ray Loudermilk received five years, although the guidelines called for a sentence of incarceration between fifteen and twenty years. Lisa Loudermilk got four years, although the guidelines called for some ten to twelve years in prison. Ms. Grape was sentenced to two and one-half years, though she could have gotten approximately eight to ten years under the guidelines.
The dramatic departures from which these defendants benefited, the propriety of which is not now before us, was based primarily on their extensive cooperation with authorities. According to the government, the cooperation of these defendants led to the prosecution of some twelve individuals, seven of whom were “major dealers.” The government moved for downward departure on this basis, and the district court granted the motion as to each defendant.8
While we believe it was not improper as a matter of law for the district court to depart downward in an attempt to generally conform Nelson‘s sentence with the sentences of his co-conspirators, we believe the substantial factual differences between Nelson‘s case and his confederates’ suggest that the degree of the district court‘s departure was not reasonable. The principal reason for the radical reduction in the co-conspirators’ sentence did not apply to Nelson; moreover, independent reasons existed to deny Nelson the “break” given his confederates.
Unlike his co-conspirators, Nelson was not cooperative with authorities. Indeed, prior to reducing Nelson‘s sentence, the district court found that Nelson obstructed justice by lying to DEA agents during their investigation and by lying at his trial.
Presumably, authorizing a district court to depart from the guidelines for defendants who cooperate with authorities was Congress’ way of giving defendants an incentive to cooperate. Rewarding one who has not cooperated with authorities to essentially the same degree as those who have cooperated strains the incentives inherent in reward and punishment. While the district court did not claim to base the departure decision on Nelson‘s cooperation, the decision was related to the co-conspirators’ cooperation in that their reduced sentences creatеd the norm by which the fairness of Nelson‘s sentence was measured. Aside from considerations of objective fairness, such an outcome could have the effect, in future cases, of diminishing the incentive to cooperate by inducing later-charged conspirators to avoid any risks associated with cooperating without losing the hope that they may still receive a lower sentence.
Moreover, while sentence uniformity is generally the policy behind the guidelines, we believe reasoned uniformity is the goal. The degree of the district court‘s departure in this case can only be regarded as uniformity fоr uniformity‘s sake. Permitting untoward departures in situations such as this could justifiably increase unpredictabil
On the basis of these considerations, we believe the district court‘s radical departure from the sentence recommended by the guidelines, sentencing Nelson to three and one-half years when he could have received as much as fifteen and one-half years, was unreasonable.
We realize that “[r]easonableness is a flexible standard.” Joan, 883 F.2d at 496. A district court‘s sentencing decision “must be given great deference, and, unless there is little or no basis for the trial court‘s action in departing, it must bе upheld....” Id. But reasonableness is not a standard without substance. “The [sentencing] court must act in a rational and just way in an effort to vindicate one of the major purposes of criminal law—deterrence, punishment, isolation, rehabilitation, or retribution.” Id. We do not view the district court‘s decision in this case as likely to further those purposes. While we believe sentence conformity is, in an appropriate case, a legally available rationale for departing from the guidelines, we do not think the degree of departure in the sentence given Nelson was reasonable.
The question that remains, of course, is what may be done upon remand. Error free sentencing and the appellate review of sentences were simpler when, in nearly all cases, appellate scrutiny was limited to the question whether the sentence imposed was within the limits described in the statute defining the relevant punishment. Now things are different. Diaz-Villafane gives this court the difficult role of reviewing a sentencing court‘s notion of what is “reasonable” in departure sentencing under the guidelines. We do not welcome that role, but neither can we escape it.
Eschewing the role of second guesser, and mindful of the broad latitude and considerable deference that ought to be accorded a sentencing court imposing a departure sentence, we are satisfied simply to direct the wise and experienced district judge to whom this case is being remanded to resentence the defendant after giving careful consideration to the reasons we have set forth for disapproving the extreme departure from the guidelines in the sentence originally imposed.
III.
For the foregoing reasons, the sentencing decision of the district court is VACATED, and the case is REMANDED for resentencing.9
RYAN, Circuit Judge, concurring separately.
Although I agree that we are probably obligated to apply the Diaz-Villafane1 standard of review in this case, I write separately to express my dissatisfaction with it. The Diaz-Villafane approach is, I think, an uncommonly ill-conceived formula for reviewing sentence guidelines departures. It artificially fragments into three distinct components, each having a different standard of review, what is essentially a unitary trial court decision. In the first prong of its three standards of review in one, the Diaz-Villafane formula purports to make a question of law requiring de novo review of such vague notions as how “unusual” the case is, and whether the “circumstances” relied upon by the sentencing court for the departure decision “may be appropriately relied upon.” In the second of the three standards of review, it purports to make a question of fact, requiring a clearly erroneous standard of review, whether such unusual circumstances “actually exist.” The third standard of review, whether the sentence is “reasonable,” is reached only if the appellate court‘s de novo conclusion is that the “case is sufficiently unusual to warrant departure” and the district court was not clearly erroneous in finding that the “circumstances” it relied on “actually exist[ed].”
The result, of course, is a review methodology that all but ignores the reality that the essence of a trial court‘s departure decision, in most cases, is a product of the countless unquantifiable components of sentencing justice, including the interests of the victim, the defendant, his or her family and associates, and the “communities” involved, both immediate and remote. The Diaz-Villafane formula all but reads out of the sentence review process appropriate deference to the trial court‘s logic, experience, wisdom, and unique insight into the case as they are to be applied in the complex art of criminal sentencing. The sum of the three Diaz-Villafane standards of review is an unsuccessful attempt to make objective what is largely, if not essentially, subjective; it attempts to make science of what is art.
Interestingly, no panel of this court has carefully analyzed the Diaz-Villafane review formula. The first case in which it was embraced simply employed it without analysis or even an express statement of adoption. See Rodriguez, 882 F.2d at 1067. Other panels followed suit, all without any analysis of the soundness of the Diaz-Villafane methodology. Thus, a new theory of legal analysis has become, in this circuit, an apparently settled method of proceeding.
Despite that the Diaz-Villafane approach is singularly unsuited to a sound analysis of the lawfulness of the trial court‘s departure decision in this particular case, I concur in its application in this case in deference to our “law of the circuit” tradition and in the name of the maxim that it is sometimes better that the law be clear than that it be wise, if it cannot be both.
RYAN
UNITED STATES CIRCUIT JUDGE