United States v. Lynda Gail Brewer and Teresa K. Evans

and inferences Viewing the evidence light most favor America, in the therefrom

drawn UNITED STATES Pachla, genuine that a Plaintiff-Appellant, we conclude able as to whether material fact exists issue of policy recall complied with the Saunders Lynda Gail BREWER Teresa K. policy is case. The recall Pachla’s Evans, Defendants-Appellees. manual. personnel Saun set forth recall adoption ders confirmed No. 89-5371. response of Pachla’s inter

policy one Appeals, United States Court of appeal, Saunders has rogatories, and on Sixth Circuit. employees off qualified laid conceded prior recalled right have the to be 8, Argued Nov. 1989. employee. also hiring of a new Saunders March Decided duties performed that Pachla his concedes regional operations manager satisfacto could infer that Pachla rily, from which one position oper of area qualified

was manager. undisputed It also

ations manager promoted and

a lower-level as area replace

transferred to Simmons manager. promoting

operations Whether position employee to a new constitutes specific for a clas

“hiring employee a new

sification,” invoking policy, the recall thus evidence has an issue on which no been Therefore, say cannot

presented. as we judgment is entitled Saunders law, matter of

the recall issue as a summary granting court erred in

judgment on this issue.

III.

Accordingly, grant district court’s part

summary judgment is AFFIRMED in part, and this case will REVERSED ‍​​​​‌​‌​​‌​‌‌‌‌​​‌​‌‌‌‌‌​​​‌​​‌‌​‌‌‌‌​​‌‌​‌​​‌​‌‍district court for REMANDED to the consistent with this proceedings

further

opinion. Brown, Atty. (argued), B.

Joe U.S. Office Nashville, Tenn., Atty., plain- of U.S. for tiff-appellant U.S. Nashville, (argued),

Carol L. Soloman Tenn., defendant-appellee Brewer. (argued), L. Robert Smith Smith & Hirsch, Nashville, Tenn., defendant-ap- pellee Evans. MERRITT, Judge,

Before Chief WELLFORD, Judge, Circuit *, Judge. Senior District DeMASCIO WELLFORD, Judge. Circuit in this case is whether the The issue applicable departed district court from the sentencing guidelines proper reasons Sentencing Act. under the new Co-defen- * DeMascio, Michigan, sitting by designation. Robert E. Senior ern District of The Honorable Judge, District for the East- United States Court sion, Manual, 1B1.3(a)(1),(3). plead guilty Guidelines and Evans Brewer dants hearing, Because the amount involved crime At the embezzlement. $20,000 $40,- exceeded but was less than that circum- court determined 000, a addition six-level was indicated. justified a downward existed which stances 2Bl.l(b)(1)(G). U.S.S.G. Two levels were range because the offense involved more added We will re- by guidelines. the indicated planning. than minimum U.S.S.G. for the reasons district court mand to the 2B1.1(b)(4). defendants ac Since both § indicated. actions, cepted responsibility for their two Lynda Brewer Teresa Evans and levels were also subtracted. U.S.S.G. count of grand jury on one by indicted a 3El.l(a). 4B1.3, Pursuant to U.S.S.G. § § 652 and under 18 U.S.C. embezzlement §§ level eleven the offense was indicated be abetting). Both entered (aiding and report. presentence the sentencing hearing was pleas, and a guilty sentencing hearing, At the sentenced both to The district court held. rejected probation the officer’s con- court years, of three ex- period for a probation presentence report clusion in the that an subject to limited cept that both would be adjustment was under upward warranted ninety days. the first detention for home the criminal livelihood section and found spe- defendants The court assessed both ten; the offense level was the instead that guide- under $50 cial assessment government does not take issue to this lines. parties level detеrmination. The offense were tellers of Brewer and Evans essentially agreed that the district court Waynesboro, a Wayne County Bank in following options, had the based on this community of less than Tennessee small level, (1) sentencing: six months offense They periodically had embez- people. (minimum)incarceration; (2) one-half of the approxi- money the bank over an zled prison six months in and one-half a half- admittedly period. Evans mate ten-month house; (3) halfway way six months $19,000, and approximately embezzled officer, probation pre- house.2 The approximate- admittedly embezzled Brewer reports, found no basis to warrant sentence $9,000. up attempt to cover their ly judge, how- The district court scheme, adjusted the bank they periodically ever, rather than follow the above sentenc- sheets and also covered vault balance ing options under the effectuat- audit of After an unannounced each other. and, essence, ed a downward $28,000 August the bank probation. gave years defendants three having missing. Their scheme to be found de- judge justified his The district indictment, any uncovered but before been following on the factors: parture voluntarily repaid both defendants (1) community support degree of they had missing funds which bank obviously of these defendants both guilty pleas to the They made embezzled. enjoy.... in the indictment. The charged offense (2) degree of remorse that been sur- expressed official responsible bank day first of their since the employees had demonstrated prise that these trusted discovery.... guilty embezzlement. been restitu- (3) degree promptnеss of reports indicated that presentence case. tion made in this four.1 Both offense level was

the base (4) history continued previous the entire responsible for were deemed community involvement.... taken, $28,000 and this had been totally (5) their the fact that behavior under “relevant con- considered factor was history. life previous aberrant from Sentencing Commis- United States duct.” indicate Subsequent amendments computation 2. each of the The offense level perhaps favorable to options, that other was the same. defendants defendants, may presently available sentencing judge. this circumstance (6) fact that both these women be measured a standard of reason- 3742(e)(2); age ableness. 18 U.S.C. at home of tender et al. have children at home. are needed 874 F.2d at 49. victim, (7) M.L. fact Mr. justified depar The district court Howard, president ‍​​​​‌​‌​​‌​‌‌‌‌​​‌​‌‌‌‌‌​​​‌​​‌‌​‌‌‌‌​​‌‌​‌​​‌​‌‍of the bank which ground ture on the that circumstances ex in this recommends

was victimized isted in this case which the Commission did clemency.... adequately take into consideration in formulating (8) Under 18 fact incarceration would 3553(b), U.S.C. purpose. serve no useful court shall a sentence ... [t]he judge found that because these range, within the referred to subsec- not taken into consideration factors were (a)(4) tion unless the court finds that sufficiently guidelines, under the a down- aggravating mitigating there exists an or departure was warranted. ward kind, degree, circumstance of a or to a proper government has established authori- adequately taken into consideration appeal ap- ty to undertake this now by Sentencing the Commission in formu- peals departure by the dis- the downward lating guidelines the that should result in trict court. a sentence different from that described. appeal on We first determine whether 3553(b) added). (emphasis 18 U.S.C. As § by cited the district court as factors U.S.S.G. 5K2.0 indicates: § depart justifying its decision to were ade- [wjhere applicable guidelines, specific quately by taken into consideration characteristics, offense adjustments Sentencing formulating Commission when do take into consideration a factor listed guidelines. part, departure from the only present is warranted if the factor is ordinarily indicated that We have a degree substantially in excess of procedure determining used in three-step ordinarily that which is involved in the appropriately whether the district de conviction. offense of First, pаrted from the the re (emphasis added). U.S.S.G. 5K2.0 “The viewing court determines whether “the commentaries, policy state sufficiently ‘unusual’ case is to warrant clearly departures ments indicate that departure.” United States v. Diaz-Villa Uca, should be rare.” United States v. 43, (1st Cir.), 49 fane, 874 F.2d cert. de 783, (3d Cir.1989)(“departures 867 F.2d 787 — —, 177, nied, 110 U.S. S.Ct. 107 rule”); exception, are to be the not the (1989); Joan, 133 L.Ed.2d United States v. Diaz-Villafane, Thus, 874 F.2d at 52. 491, (6th Cir.1989) (adopting 883 F.2d sentencing depart court should not from three-part test enunciated Diaz-Villa- Sentencing Com purely question fane). This is of law. adequately mission has taken into consider Diaz-Villafane, 874 F.2d at 49. pertinent ation the factors unless rare and Second, we determine whether the cir- exceptional depar circumstances warrant cumstances, conceptually proper, if actu- reviewing ture. In court’s ally particular exist case. That departure, apply the facts found factfinding involves assessment and the they district court unless are erro may trier’s determinations be set aside Perez, neous. United v. 871 F.2d States only for clear error. See 18 U.S.C. — 45, (6th Cir.), denied, U.S. -, cert. 3742(d). 3227, (1989). 109 S.Ct. 106 L.Ed.2d 576 We Third, once we have assured ourselves make a de novo review of the lower court’s that the court considered cir- conclusions of law. United States v. appropriate (3d Cir.1989). cumstances Ryan, 866 F.2d 604 We also equation enjoyed and that those give factors “due deference to court’s adequate support, record application the direction to the facts.” 3742(e). degree departure must, appeal, 18 U.S.C. § attempted Congress’s to further guidelines, one mission promulgating In that, inexorably aims. It follоws to im- primary Sentencing Commission’s guidelines properly, plement the a sentence “based goals was goals Among in mind. must bear these committed, not the offend the crime upon things, courts must remember the other Mejia-Orosco, 867 er.” United States — importance Congress, and the denied, (5th Cir.), 216, cert. Commission, ensuring attached to 3257, U.S. -, 106 L.Ed.2d 602 109 S.Ct. like situations are treated alike. Sentencing (1989). The end, only To this cases outside the objectives Congress had three stated “heartland” for the crime of conviction (1) sentencing reform law: passing Congress warrant As or- (3) (2) uniformity, proportion honesty, dained, may depart a district court sought honesty first ality. “Congress if it that there ex- “finds ‍​​​​‌​‌​​‌​‌‌‌‌​​‌​‌‌‌‌‌​​​‌​​‌‌​‌‌‌‌​​‌‌​‌​​‌​‌‍A, Pt. Intro. sentencing.” U.S.S.G. Ch. kind, of a ists ... circumstance [a] original). es (emphasis Comment degree, adequately taken into con- sence, Congress and the Commissiоn sideration sentencing. disparity in sought less formulating that should Second, Congress sought uniformity result in a sentence different from that dispar- sentencing by narrowing the wide described,” 3553(b), 18 U.S.C.A. § fed- imposed different ity in sentences not otherwise. conduct similar criminal eral courts for Williams, 962, 891 F.2d United States Third, Congress by similar offenders. (1st Cir.1989) (citations omitted). 963-64 sentencing in sought proportionality regard to what has been traditional- With imposes appropri- through system that crimes, ly known as white-collar the Sen- for criminal ately sentences different tencing say: had this to severity. of different conduct practice, present sentencing Under the ma- (emphasis original). One of Id. probation inappro- an courts sentence to sentencing to reduce the jor efforts was percentage of offenders priately high judge’s discrеtion: crimes, economic such guilty of certain discretion [Gjranting such broad [to theft, evasion, offenses, antitrust as tax broad dis- judge] correspondingly risks fraud, trading, and embezzle- insider different courts sentencing, parity ment, in the Commission’sview are discretionary powers may exercise per- were to “serious.” If the say, such ways. That is to in different impose probation instead of mit courts to the wide approach risks a return to cases, many such prison in or all Congress disparity that established continue to be present sentences would limit. to ineffective. “mandato- are not Id. While prob- to this solution The Commission’s rules,” v. Al- ry United States to write lem has been (Mer- (6th Cir.1989) len, 963, 967 (and sub- therefore classify as “serious” strongly ritt, J., believe concurring), we sentences) prison ject mandatory to substantially that “the Act and Guidelinеs probation is many for which offenses the discretion which sentenc- time, circumscribe same frequently given. At the now at 966 formerly exercised.” Id. ing permit courts guidelines will omitted). (citations prison terms impose short court to cases. The Commission’s many such uniformity, Congress striving for In pris- of prospect the definite view is that disparity the wide sought to “narrow[] short, as a on, will act though the term is imposed by different federal in sentences many of these significant deterrent conduct similar of- for similar courts compared with crimes, when particularly striving proportionality, In fenders.” pris- not quo probation, where the status system sought to establish “a Congress on, norm. is the appropriately sen- imposes different (em- A., 1, Intro. Comment Pt. criminal conduct of different U.S.S.G. Ch. tences for added). turn, phasis Com- severity.” involvement, community their continued of au- Breyer, one Stephen Judge a member fact the defendants and the thors Commission, expressed the same support children at home sentiments: depart downward from decision signifi- in its data found

The Commission the record indicates While pre-Guideline between discrepancies cant support, community enjoy the defendants certain white-collar punishment community, and are still involved fraud, and other similar crimes, such home, these circumstances have children at crimes, such as theft. law common adequately taken into consideration indicated that statistics Commission’s formulating the by the Commission involved, fraud was white-collar where by the dis- factors listed guidelines. These to offenders probation granted its downward de- justifying trict court in situations involv- than frequently exceptional, and ordinarily parture are not crimes; fur- law common analogous ing therefore, departure based on a downward thermore, were less severe prison terms usually not warranted. these factors is did criminals who white-collar mitigate the ineq- To probation. responsibilities receive “Family ties and discrepancies, the Com- these uities ordinarily community ties are cer- require short but decided mission should determining a sentence whether of confinement.... tain terms guidelines.” outside the U.S.S.G. Sentencing Guide- “The Federal Breyer, Also, race, sex, and socio-eco- 5H1.6. Upon Key Compromises lines deter not relevant nomic status “are Rest,” L.Rev. They Which Hofstra sentence.” mination of U.S.S.G. added). (emphasis prison term Although a short 5H1.10. for two this course took The Commission it hardship, “[ujnfortunately, may imрose First, Commission con- reasons. family for innocent is not uncommon sentencing practices, present sidered members, suffer including children ... pro- receive criminals white-collar where parent’s a incarceration.” as a result of other offenders often than more bation Fiterman, 89 CR No. States v. United comparable of se- crimes committed who 1989). (N.D.Ill. Defendants 176-1 June Second, the Com- be unfair. verity, to in this record pointed to no facts have a short but definite believed mission are which indicate that these factors might deter future of confinement period substantially excess “present degree effectively than sentences crime ordinarily that which involved of [are] condition. no confinement with embez the offense of bank conviction [for then, provide, 22. The at Id. 5K2.0. U.S.S.G. § zlement].” criminals, frequently collar who white record, are to be treated why previous point no failed to The district out court criminals commit- differently than other community support no or fam- defendants’ offenses. economic With ting comparable “substantially in excess” of ily ties were mind, now turn background tell- generally in other bank those involved by cited factors specific cases, especially those er embezzlement depar- the downward justifying as settings. town cases which small occur tures. family have stable relation- defendants community support, bank, degree ships, good jobs 1. The at the had of involvement, community continued they spouses gainfully employed, and were ties family and they difficulties had no financial any way in com- justified claimed them court cited the The district commu crimе.3 mitting this economic enjoyed, defendants serious nity support which view, "relatively is true not a small” amount. This we deem dissent's embezzle- 3. Unlike the Tennessee, tellers, relatively $28,000 Waynesboro, a by assisting because bank ment of the another, community. involving small a substantial amount one must then who defraud national district court review this basis Many tellers bank employment, departure. Contrary en- long tenured to the dissent's banks have support, statement, have families to community joy unsupported voluntary ad- family responsi- other support, and raise missions restitutions have been “taken that these have serious doubt bilities. We into account” and defen- “sufficiently ‘unusual’ to war- are factors given dants were full credit therefor in 874 F.2d departure.” Diaz-Villafane, rant calculating the numerical base for deter- anаlysis on We note in the dissent’s at 49. mining guideline range. a See United motherhood status of defen- the sex and (7th Carey, States v. 895 F.2d 318 Cir. dants, there is no citation to the 1990). taking authority issue with our or case moth- Regrettably, females and rationale. previous criminal histo- Defendants’ conduct, and are in criminal ers involved ry and aberrant nature conduct of that consid- guidelines specifically state by Another factor cited (or race) irrelevant of sex eration departing court for downward was the de sentencing. See United States v. “previous history,” and fendants’ Cir.1990). Carey, 895 F.2d 318 rep these continued acts of embezzlement complete departure resented a from their promptness 2.Degree remorse of of factors, too, prior conduct. These were restitution by Sentencing considerеd Commission rele court also cited as promulgating as evi re degree the defendants’ vant factors categories denced the inclusion of six payment restitu prompt and their morse history. a defendant’s criminal Because 3E1.1, the In the at tion. previous the defendants did not have a acceptance indicated history good criminal had record as clearly factor in reduc responsibility was tellers, they appropriately placed in “If ing a defendant’s sentence. the defen History Category I. Criminal Since this recognition clearly demonstrates dant expressly a factor taken into consider re acceptance personal affirmative ation conduct, his criminal reduce sponsibility for failed to demon since defendants have by 2 levels.” the offеnse level U.S.S.G. exceptional circumstances warrant strate fact, 3El.l(a). in the court this case § departure, ing a downward appropriately reduced the defendants’ sen relying erred in on the defendants’ court by acceptance levels for their of tence two background departing lack of a criminal responsibility. guidelines. downward from See Bol regard payment to the defendants’ With den, 1339-40; 889 F.2d at United States v. Notes,” restitution, “Application of Cir.1989). (1st Williams, 891 F.2d 962 guidelines expressly state 3E1.1 of the payment “voluntary pri- that of restitution purpose incarceration No useful for guilt” factor to adjudication or to of is a be by cited An additional factor determining a defen- considered whether requiring a downward was court reduction qualifies dant for the two-level no useful incarcеration would serve acceptance responsibility. of Once for earlier, guidelines purpose. As stated restitution and remorse again, the factor of to ensure that sentenc promulgated were guidelines, and considered under the ing judges sentences would appropri- offense level was the defendants’ and to ensure uni fit the crime committed levels. Unless the ately reduced two “for similar criminal con form sentences volun- proved defendants 1,Ch. offenders.” U.S.S.G. duct similar repayment of the embezzled funds tary A, simply It not the Intro. circumstance,” Pt. Comment. “exceptional constitutes an prerogative if he dis sentencing judge’s departure based this factor a downward concepts deter agrees with the v. was not warranted. See United States Cir.1989). serve a Bolden, (4th mine whether incarceration would The 889 F.2d depar- a downward ex- tional as to warrant when the purpose useful jail judge’s minimum term. reliance on the for a The district ture.5 pressly provide promulgated leniency sen- plea president’s Because bank complete discretion judge’s may to reduce tencing under these circumstances principle, we believe matters those long- misplaced since he was a have been depart- judge improperly district court friend of time defendants. on this guidelines based ed from Bolden, supra; United factor.4 See 6. Other Factors Williams, supra. v. States miti emphasized clemen- recommendation 5. Victim’s it felt warranted a gating reasons which cy pointed ‍​​​​‌​‌​​‌​‌‌‌‌​​‌​‌‌‌‌‌​​​‌​​‌‌​‌‌‌‌​​‌‌​‌​​‌​‌‍out departure. We have downward some or of those reasons were relied on the most court also The district been, alleged not, justified under clemency by may victim—the not have plea of justifying a the bank—in dis president guidelines. We note also government downward should court in in such cases trict fairness employ factor as one this characterizes mitigating circum merely emphasize citing 5H1.2 and 5H1.5 history, ment §§ failing aggravat while to consider stances miti may ing factors that counterbalance are not vocational skills Education gating Specifically, in circumstances. determining wheth- ordinarily any proffer failed to case both defendants outside the should be er a sentence being explanation rational or excuse for are education and Neither guidelines.... to em compelled of months over a number determining skills relevant vocational amounts, the total of substantial bezzle imposed sentence to be type of incomes, annual earned which exceeds their sentencing op- provide conspiratorial acting in and in concert tions. spous wrongdoing. in their Their fashion education vo- 5H1.2. Like U.S.S.G. § crimi gainfully employed and the es were skills, “[e]mploy- a defendant’s cational affair, not a one-time but nal conduct was ordinarily relevant record is ment many in character over rather continuous a sentence should determining whether for consideration of months. We remand within guidelines or where outside the aggravating mitigating these as well should fall.” U.S. a sentence those as elimination of factors as well S.G. 5H1.5. proper not a factors which were basis plea in terms of Although couched departure. See United States Robin prеsi- from the bank remarks leniency, the Cir.1990). son, 898 F.2d defen- attention to the primary dent direct recognize appreciate and the difficul- We history, their communi- employment dants’ impos- upon judges in imposed ties restitution, prompt and ty support, their guidelines. We ing sentences under some of family responsibilities, their departures are recognize also that warrant- These other previously discussed. we have case. When ed in the rare and unusual adequately taken into consid- factors were exists, warranted, and proper basis we guidelines, and harbor by the eration reasonable, generally we affirm when it is reservations defendants serious exercise of discretion are so the district court’s excep- that these factors established event, Newsome, president any the bank F.2d 852 5. In United States case; rather, Cir.1990), stated: this the shareholders of we victim in hereby victims. We do not court to the bank are the for the district would not lawful It impose guideline leniency range plea would a sentence above indicate that a victim's sentence, theory that such justify on the never a downward proposition, would better serve the abstract rehabilitation and than interest of deterrence guideline range. a sentence would within ordering departure.6 judge procedures The district carrying out court re- experienced in this case is able sponsibilities under the new pro- complex trying sentencing process, and cedures. We do not intend our action to we have confidence that he will effect a “create an inflexible sentencing system,” spirit guidelines sentence in the re- nor hereby do we transform the gardless personal of his views about into “mechanistic ‘rules’.” merit. Accordingly, we REMAND this case to puzzled areWe that the dissent has mis- the district court resentencing in ac- underlying conceived our rationale this re- cordance with principles herein ex- “put mand. We make no effort the pressed. sentencing judge jacket;” in a strait it is Congressional mandate effectuated in MERRITT, Judge, Chief dissenting. sentencing guidelines, designed to bring uniformity, about that we are follow- In this downward sentencing ing Unfortunately, here. the dissent seems appeal, our Court has reversed Chief Dis- displeased somewhat with the Judge trict Wiseman’s proba- sentence of misinterprets by insisting them tion for two defendants who are first of- opinion, or our takes into fenders. I disagree with our Court’s deci- only aggravating аccount circumstances sion for First, five reasons: our decision mitigating and not circumstances as well. admonishes district against courts consider- certainly attempt “proscribe We do not ing departing downward on the basis mitigating consideration of these facts.” atypical combinations of sentencing only emphasize sentencing We defendants, facts favorable to facts that counterbalancing court must also consider judges most would highly consider relevant facts, merely mitigating relevant cir- any sentencing reasonable determina- sentencing process. cumstances in the We Second, tion. assumes, the decision with-

point out that a court should any out factual contrary basis and unique factors, not treat as or unusual Sentencing Commission’s own statements those circumstаnces that contrary, that the Commission took already taken into express- account or these factors and nuances into account in ly join deemed irrelevant. We with the devising Third, the Guidelines. the deci- dissent in encouraging the district court sion does not follow the deferential stan- “to take into panoply consideration the full appellate dard of review established in facts,” (emphasis plain statutory language by Congress for added), give and we “due deference” to the Fourth, such ignores cases. the decision process. congressional stated policy fa- Finally, do not share the concerns voring probation for first offenders in such expressed in part V of the dissent. Only a cases. Fifth, judi- the decision will make handful of appeals depar- from downward cial administration in cases at ture sentences have come to this court. It appellate the trial and levels more difficult. appeals upward depar- true that In this bank embezzlement the con- large numbers, tures have come to inus victions are first offenses two have, and we appropriately, remanded or previously women with untainted records reversed district a few decisions reputations. money The amount of respect in that which we deemed to have taken law, relatively prompt- small and was improper violated the or involved or women, ly young returned. wrongful The two who basis for The writers have small children majority opinion of the at home to be raised have served as dis- nurtured, judges many years, trict for appre- and we came forward and voluntar- difficulty ciаte the of adopting ily wrongs standards employ- disclosed their to their Commission, report the assisting government bringing In annual it is other than the in approximately justice. departures indicated that 9% others to Less than 3% were sentences departures guidelines. have involved downward for reasons above the commentary also and the culpabil- Guidelines The discovered anyone ers before the victim case which consider the fail to that the believing employers, Their ity. sufficiently serious as crime not jus- views the to sufficiently serious not crimes Fur- the defendant. imprisoning justify to District Court incarceration, the asked tify not contem- thermore, do the Guidelines probation. women the two place to to comes forward a defendant who plate before I. restitution and offers confess disсovered. culpability is defendant’s sentencing system, fair devising a In found, and the facts precisely These are dispar- than small something worse there All are considered, by Judge Wiseman. rules that sentences—mechanistic ities sentencing facts which clearly relevant be- arbitrary punishment or unjust Surely when not do mention. Guidelines sentencing judge they preclude cause ap- mitigating facts a such combination factors and relevant considering all from per- sentencing judge should be pear, the Unfortunately, our case. nuances meting account them into mitted to take misinterpreted the has case in this Court clearly errs Court sentence. Our out the cases, put it has departure Guidelines. from al- Judge Wiseman prevents it that jacket in a stait sentencing judge mitigating on such tering a sentence bаsed take account all to into him not allow does facts. sentencing. The to facts relevant to consider Court District allows Court II. sentencing facts group of limited only recognized Sentencing The Commission I in the recognized explicitly all adequately consider not that it could are relevant. general facts these that agree combination, in factors, or in singly either to favorable facts, however—facts Other system grid devise a mechanistic to order to relevant equally defendants —are plainly sentencing. The Commission for universally con- have been sentencing and stated: jurors for hundreds by judges sidered proscribes the our Court intends Today, The years. facts, carving mitigating guideline ei- these treat each consideration cases “heartland,” typical or combinatiоn. a set in isolation out ther guide- that each embodying the conduct say now example, should Why, for finds an a court When line describes. the fact first time particular to which one atypical who must mother ais defendant where applies linguistically but longer is no children small several raise significantly differs conduct it Why should her sentence? norm, consider may whether of the crime the victim be irrelevant warranted_ Com- The departure is of sufficient crime that the believes kinds limit the does intend mission the de- imprisoning to deserve seriousness (whether or not mentioned of factors it irrelevant that Why should fendant? guidelines) anywhere else and admitted came forward the defendant grounds departure could constitute culpability was discov- her crime before case. an unusual facts, in combina- alone and ered? Such Commission, States high- United been considered tion, have heretofore 4(b), Policy Manual, Statement ju- Guidelines sentencing judges ly relevant added). (Nov.1989) (emphasis rors. rea- explains the then The Commission in the Guidelines nothing find canI policy: soning liberal behind suggests that these even commentary depar- adopted this into taken ac- have been sentencing facts First reasons. basic ture two policy devising the Guidelines. count foreseeing captur- difficulty of is the of defen- any consideration omit Guidelines encom- that guidelines of single set ing a children to raise responsibility dant’s conduct range of human passes the vast sentencing determination. as it affects 513 applica- court’s district to the erence sentencing deci- relevant potentially to the the tion recognizes facts. also of The sion. added). This it need 3742(e)(emphasis of set initial U.S.C. in the 18 apply in sim perma- which the one standard do so. not the relevan of questions to write settings when by law empowered ilar body, nent See, re e.g., In issue. are at progressive facts cy of with rewrite 207 F.2d Litigation, 695 Fire Beverly monitor- By Hills years. many changes, over 929, denied, U.S. Cir.1982), 461 guide- (6th cert. from the depart courts ing (1983); 300 L.Ed.2d S.Ct. rea- 103 stated their analyzing lines Corp., 591 Chem. Commission, Drayton over so, the doing Jiffee for sons Cir.1978); Moore’s Federal accurate to create time, able bewill (district (1988) court Practice 401.03[6] where precisely specify concepts applying in discretion broad has per- not and should should departures ruling materiality, and relevancy and of mitted. of abuse absent be disturbed should Sentencing Commis- Although the Ibid. to failed hаs discretion). Court Our it was unable acknowledged that has sion the Court. to District deference” give “due the ones as facts such account take into to acknowledges that statement, it its own By or in either isolation this presented the of review” novo a “de it has made insists, without combination, Court our as sentencing conclusions court’s lower has evidence, the Commission any question reviewing pure though were it unusual this considered adequately fact Court, 507.) Our Op. at (Maj. law. of de- these to favorable of facts combination absolutely no defer therefore, given has why our understand I do fendants. of “application Court’s District ence own state- the Commission’s ignores Court I believe the to facts.” the matters such not taken it has ment the stat of language “due deference” why re- specifiсally, More account. into discretion” “abuse of a broad creates ute in our courts district allow fuse to I therefore sentencing cases. standard the full consideration into to take circuit “no or “de novo” the Court’s disagree with By sentencing facts? of panoply review, a standard of standard deference” turned decision, this Court today’s This of law. questions pure for reserved which “rules” into mechanistic “guidelines” of language plain contravenes standard many cases injustice serious create will review appellate authorizing statute the Sixth Cir- Currently, in future. sentencing. of principles historic for prescription are a cuit, the Guidelines in the United years past For the no can judges district because injustice review appellate no States, has been there inappropri- of imposition prevent longer dis- imposed sentences length of of sen- of the basis sentences ately harsh im- the sentence long as so judges trict defendants —a to favorable facts tencing authorized statutorily fell within posed Commis- that the injustice for prescription reason, appellate courts this range. For a liberal by creating correct to tried sion sen- of set developed a coherent have not policy. policies on tencing principles Con- Neither reviewing sentences. rely in III. legislation, the new gress, re- appellate Commission, schol- nor devising a standard Congress set any such Appeals, supplied community has the Courts arly view far So courts. appellate to aid principles said: exist. determine, principles no such the rе- I can give shall appeals court no area with this flying are blind We opportunity gard sit- Given navigation. instruments credibility of wit- judge court our role appropriate uation, most findings of accept nesses, shall wide give is to Court they are unless fact with work review then discretion due give and shall clearly erroneous def- under it, “due deference” “abuse discre- of facts before that this first offense is tion” standard. sufficiently justify “serious” to impris- onment. I Judge affirm would Wiseman's addition, recognize we ap- must sentence in (1) this case because of pellate courts are remote from setting acknowledged failure of the Sentencing judges in which district make sentencing Commission to take into account all of the We do not see or decisions. the wit- hear case, (2) relevant facts of this plain the defendant. nesses or We are removed statutory language requiring “due defer- appeal from the emotional in the case and ence” to the District sentencing Court’s pain from the and suffering removed conclusions, (3) statutory language harsh inappropriately sentences can allowing “imprisonment for a first offense” on a defendant. We do not see upon only a finding that the offense is the case that nuances of are favorable to “serious.” only the defendant. We see the crime in aspect. generalized We do not see real V. live, people struggle in their to only ab- people “plaintiffs” stract and “defen- Finally, — purely a matter of judicial ad- dants,” “appellants” “appellees,” “peti- ministration, I our believe Court’s decision “respondents.” tioners” and in this establishing a “de novo” rath- er than a “due reasons, deference” standard of re- For these in addition to the time cases, view application in which will operate, constraints I have many lead to more appeals, less certainty little that the appel- confidence decisions of finality, courts, disparity appel- late on the basis of intricate combi- late judges impose judges on district sentencing developed nations of facts own various and conflicting sentencing judges, likely are to be wise deci- already An views. ap- overworked federal give I therefore would sions. great defer- pellate judiciary is being now sentencing ence to the inundated of district decisions with cases. The courts. number of appeals criminal and, has doublеd in some IV. courts, tripled since the effective date of the Guidelines. efficiency From an stand- Congress clearly provided Sen- point, the thing best judicial for the federal tencing judges Commission and should not system as a appellate whole is judges impose a sentence of “imprisonment affirm judges atypical cases which the defendant is a first departure cases unless the sentence is offender who has not been convicted of a clearly outside range of reasonable- crime of or an violence otherwise serious ness. 994(j) offense.” U.S.C. (Supp.1989).1 In this case the District Court and Today’s decision, stand, if allowed to cre- victim of the crime agree both ates an sentencing system inflexible sufficiently crime is not “serious” to justify anyone’s interest except perhaps imprisonment. give I would “due defer- prosecutors, who their charging deci- ence” conclusion, District Court’s sions, will effectively establish the sen- based on a consideration of panoply the full tence.2 As a prosecutor, former federal I provides: 1. This section trend deferring A toward prosecutor’s judgment rapidly being established in our (j) The Commission shall insure that the Circuit. A sentencing departure review of cases general appropriateness reflect the in the Sixth pattern Circuit shows a clear imposing a imprison- sentence other than prosecutor See, always e.g., wins. United ment in in which the cases defendant is a first Pitman, (6th Cir.1989) States v. 888 F.2d 128 offender who has not been convicted of a (table decision) (full reference to unpublished crime or an of violence otherwise serious of- Wеstlaw); text available on nett, United States v. Bar- fense, general appropriateness and the of im- (6th Cir.1989) (table 887 F.2d 1088 refer- posing imprisonment person term on a unpublished decision) (full ence text avail- convicted of a crime of violence ‍​​​​‌​‌​​‌​‌‌‌‌​​‌​‌‌‌‌‌​​​‌​​‌‌​‌‌‌‌​​‌‌​‌​​‌​‌‍that results Westlaw); Joan, able on United States v. bodily injury. serious (6th Cir.1989); Seltzer, United States v. of sentenc- system rigid that such know gives it because failure only end in ing can too process competitive side one best, system A flexible power. much judge impartial upon relies one facts with intimately familiar “guidelines” turn We should

case. into mechanistic Congress

intended liberal eliminating the rules Sentencing Com- by the established policy

mission. America, STATES

UNITED Plaintiff-Appellee,

Cross-Appellant,

v. HAYS,

Ricky Allen

Defendant-Appellant,

Cross-Appellee. 89-5029, 89-5157.

Nos. Appeals, Court States

United Circuit.

Sixth 26, 1989. Sept.

Argued 29, 1990. March

Decided on decision) (full available text unpublished (table 1989) (6th reference Cir. unwar- departure held Westlaw) (upward decision) (full text available unpublished Westlaw). Edwards, ranted). States United But see 1989) (table reference Cir. F.2d 76

Case Details

Case Name: United States v. Lynda Gail Brewer and Teresa K. Evans

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Mar 29, 1990

Citation: 899 F.2d 503

Docket Number: 89-5371

Court Abbreviation: 6th Cir.