*1 though he estoppel, even ment America, by it had it been bound UNITED STATES not have would we think it And way. the other been otherwise, for, when be well could not directly with litigated has plaintiff PASTER, Appellant. Frederick Mitchell claim actor the the immediate No. 98-7270. and, opportu- upon full culpable, investiga- legal nity thus afforded its Appeals, Court of adjudged
tion, has been claim Third Circuit. there is manifest plaintiff, against holding injustice, and no propriety, Dec. 1998. Argued mak- from thereby concluded he is April Decided recovery right the basis of ing it re- otherwise who is another from
sponsible. Co., Pa. Mfg. Helmig v. Rockwell
C.S.
denied,
622, 628,
32-33,
cert.
A.2d
355 U.S.
(1957). persuasive reasoning find this We Here, this applicable to case. conveyance issues
fraud and fraudulent are so and Srein against Welch
brought another with one
inextricably intertwined against the disposal of the claims
that the alleged claim necessarily fatal to the
one is the other.
against opinion, similar to briefs
This
submitted, necessarily fact intensive as complicate this issue. what
the facts are applies estoppel holding that collateral case, against its caution unique others extreme
invocation in most without Indeed, application its doubts about
care. its against use. usually be resolved
should Moss,
See Kauffman (“Reasonable (3d Cir.1970) doubt as prior judgment decided
to what was using it as an against be resolved
should of these
estoppel.”) While we are mindful necessary to address feel it
concerns and they implicated specifically,
them are case, not a bar and thus
in the facts of this applied here. preclusion
to issue
IV. reasons, judgment foregoing
For the affirmed. Court will
of the District be *3 Walder, Son- (Argued), D. Stone
Shalom NJ, Roseland, Appel- Brogan, &dak lant. (Argued), P.
Wayne Samuelson PA, Office,Williamsport, Attorney’s Appellee. COWEN, SLOVITER Before: OBERDORFER, Judges, and Circuit * Judge. District THE OF COURT OPINION OBERDORFER, Judge. decisions sentencing here review We Court below a by the District rendered on a federal of murder troubling case very 28,1996, a federal August On reservation. charg- an indictment jury returned grand pre- with Paster ing Mitchell Frederick wife, Marga- Dr. murder of his meditated Bostrom, stabbing repeatedly her by ret 7(3), §§ knife. 18 U.S.C. a butcher pled not arraignment, At Paster intention noticed and later his guilty, Thereafter, govern- insanity. plead * Oberdorfer, designation. by Dis- United States F. Hon. Louis Columbia, sitting for the District trict Court ment that it indicated would not seek the went out with supervisor her and did not home, penalty by come death authorized U.S.C. left Lewisburg for his 1111(b). trial, parents’ govern- On eve of home New Jersey. While there, agreed Paster was July ment that he would served on 25 with plead divorce guilty papers filed second murder. At his wife on July 18.1 hearing preliminary to his Thereafter two acceptance reportedly recon- However, ciled telephone. plea, Judge on August elicited from 12, 1996, probation Margaret after prosecutor revealed officer that she having that, affair with time, supervisor, then- best estimate her as of that parents’ returned imprisonment Paster would face home. ranging from 168 to 210 months. After a two-day After reconcile, further efforts to on the *4 prеsentence hearing, Court or- night August home, 15 Paster returned dered Paster for 365 confined months. only to find that his wife was not there. him, According to she drove their home appeal,
On this challenges four on separate two occasions 1) night. that aspects of the sentencing decision: deni- When she returned following morning, al of a downward on account of he confronted her about where she had Dr. provocative Bostrom’s con- allegedly been. She 2) apparently upset, became duct; and denial of a downward telephoned the warden at the Lewisburg on account of arguably Paster’s Penitentiary, to whom Paster had behavior; 3) revealed denial of an additional one- the ongoing affair. Margaret handed adjustment level downward for Paster’s telephone receiver, and in- alleged acceptance of responsibility; and structed him to retract 4) prior his statement imposition of a upward nine-level depar- to the warden. Paster told the warden ture for “extreme conduct.” For rea- that statement, he would not retract herein, sons stated we affirm the District despite being pressured. After hanging respect two, with to issues one and up the phone, Margaret mentioned that with respect three, reverse to issue and she friend on the reservation who remand for resentencing after the District kept weapons house, at his and that if Judge has an opportunity to reconsider his Paster did not retract his statement she resolution issue four in light of our would entice the friend “to do whatever opinion. States, See Koon v. United she wanted.” She then told 81, 98, Paster that U.S. 135 L.Ed.2d she had (1996). had between forty fifty and affairs
during their relationship, planned and I. pursue continue to relationship supervisor. her Thereupon up- she went presentence investigation report shower, stairs to take a leaving Paster (“PSR”) and testimony pre- at the downstairs. disclosed, hearing sentence and the Dis- found, trict Court that Paster and Marga- point, At one went outside and ret met in 1985 married in 1994. At with a neighbor, reported conversed who the time of the they murder lived in calm, Lew- later that Paster was “very pleasant, isburg, Pennsylvania, where she very soft-spoken.” worked as PSR 9. Minutes a psychologist later, however, the United inside, States Peni- he went back re- tentiary. In the pre- months immediately trieved knife from the butcher block ceding the August 1996 stabbing, kitchen, cou- proceeded then, upstairs, and ple experiencеd serious marital problems. as Margaret emerged shower, from the One night July after Margaret stabbed her with the knife numerous response divorce, filing Paster's was Au- lawyer due for a reported having but her gust 1996. He claims that his wife told knowledge plans. no of such planned him that she request to withdraw her call his able to he would be that report promising autopsy According to times. Land, mother. a forensic by Dr. Samuel prepared multiple stab she died pathologist, an in- to Paster’s notice response Specifical- organs. vital to various Sadoff,
wounds psychia- plea, Dr. Robert sanity stab sixteen counted Dr. Land ly,’ examinations trist, after two concluded were life-threaten- of which premedi- wounds—nine not deliberate “did that Paster heart—(cid:127) to the which were six of ing and outward “[t]he and that killing,” tate of de- wounds indicative for- atypical and eleven slash of violence explosion reported also Sally Dr. Dr. Land at 44. App. action. fensive for him. eign” completely penetrated Johnson, for the Mental Psychiatrist one wound that stab Chief Butner, sternum, one wound concluded and that at FCI Division Margaret’s Health [Past- tile be- floor no indication body and the “[t]here her penetrated Dr. harm his hearing, any plan tо sentencing had formulated er] her. At neath symptoms wife,” reported “was Margaret’s death Land testified with dissocia- one, one of consistent memory it “was were loss very violent” Dr. Sadoff Appen- Id. at 60-61. I’ve seen.” tive amnesia. cases most severe that, opinion, in his further concluded at 189. (“App.”) dix Thereaf- insanity defense. was no there *5 murder, telephoned his After the the pursuant to ter, of trial and on the eve employment. He place of mother at her sec- pled guilty to plea agreement, that he had reported called 911 then murder, case entered and the ond He told in the his chest. stabbed wife sentencing phase. its name, his tele- operator his emergency sentence, Dis- calculating Paster’s address, number, and de- and his phone from the base offense Judge began trict bloody knife. the location scribed murder. for second of 33 level phone authorities on the until He remained Guidelines Sentencing States United person- were on the scene arrived. First (“U.S.S.G.”) granted then a § 2A1.2. He He told Bureau of Prisons. nel from the acceptance of re- for two-level reduction wife and that had stabbed his them that he pre- for denied enhancements sponsibility; The upstairs in the bathroоm. she weapon; imposed use of a meditation body in the personnel found her BOP departure for extreme upward nine-level a bathroom; on lying naked she conduct; departure for a downward denied pool of floor in a blood—dead. behavior; de- a downward denied conduct; and denied for victim’s afternoon, parture of the Fed- agents Later that accep- for one-level reduction an additional Past- Investigation arrested Bureau of eral District Court responsibility. tance of Lewisburg Peniten- took to the er and him Having of 40. offense level calculated an At for tiary Training questioning. Center record, Paster was in prior no criminal remember first, that he could not he said I, and therefore history category criminal inter- in the happened upstairs; later what range subject guideline incarceration a however, that he did view, responded he District Court months. The of 292-365 that had talk about events not want to lev- for the offense maximum imposed the 25, February According to a transpired. months, thirty years five or el: 365 report, he presentence investigation 1998 appeals. months. Paster the actual unable to recall “remain[ed] murder, involvement acknowledged his but II. Meanwhilе, PSR the offense.” argues denied, filed, a the District Court he motion for a by denying his Court erred suppress statements motion to §to 5K2.10 departure pursuant downward theory that on the investigators made to permits That section guidelines. of the FBI induced statements agents downward “[i]f the victim’s § By U.S.S.G. 5K2.10. delineating these conduct wrongful significantly factors, contributed five guidelines contemplates to provoking departures offense behavior.” where the victim’s conduct posed actual, argued U.S.S.G. 5K2.10. Paster reasonably perceived, dan- ger defendant, District Court that his wife’s revelation of to the emphasis with on past infidelity exposed physical wrongful danger. conduct Court decisions confirm provocation and was the what sole context guideline § the fatal 5K2.10 stabbing. implies: rejected Generally District Court only conduct, violent argument, wrongful, justifies albeit reasoning that “[t]here downward de- parture. is no confirmation of Paster’s See [sic] state- Blankenship v. United States, affairs,” (8th any prior ments as to and that 159. F.3d Cir.1998), — denied, allegations “[t]hose even if true cert. U.S. -, do not (1999) indicate that the victim substantially pro- L.Ed.2d 699 (affirming denial of voked her murder.” United States v. because while conduct was (M.D.Pa. 17 F.Supp.2d “wrongful,” it violent); was not see also 1998). Thus, thе District Court v. Bigelow, wrote: (7th Cir.1990) “Even though we have the authority (physical blocking of doorway for victim misconduct the was not physical conduct “sufficient con- provoke attack”) of the victim in tact this case does not warrant (emphasis add- ed). departure.” Shortt, Id. We review clear States v. Cf. McQuilkin, Cir.1990) error. United States v. (embracing idea Cir.1996). that “there’s hardly any greater provoca- tion than to have having someone an affair terms, By its hinges depar- 5K2.10 your spouse”). 1) ture on two criteria: victim must *6 The District § 2) denied a conduct;” 5K2.10 “wrongful have committed and departure because there no danger was or such conduct have sig- must “contributed perception reasonable danger to Paster. nificantly to provoking the offense behav- F.Supp.2d at 351. There is ior.” policy statement instructs that ample record evidence support to the deni- deciding [i]n the extent of a sentence First, al. Margaret’s and strength size reduction, a) the court should consider: posed Second, no threat to Paster. victim, the size and strength of the himself initiated the fatal confrontation. characteristics, other physical relevant Third, the record contains no suggestion comparison with those of the defen- Margaret that reputation had a for vio- b) dant; persistence of the victim’s lence; it was the District preroga- Court’s conduct and any efforts the defen- tive to danger discount to Paster from his prevent confrontation; c) dant to event, wife’s friend. In any all of the danger perceived reasonably by the de- knife, circumstances —Paster armed with a fendant, including the reputa- victim’s his wife attacking emerged as she a from d) violence; tion for the danger actually shower—demolish provocation his victim presented to the defendant the vic- claim.2 tim; e) any other relevant conduct victim
by the that substantially contrib- considered, The foregoing it was not presented. uted to the danger necessary to decide whether revelation of analysis easily 2. This distinguishes case larger was considerably victim than the from United States v. Yellow Earrings, defendant; that the victim was intoxicated (8th Cir.1989), F.2d 650 where the court of history unpredictable had conduct appeals upheld upon downward intoxicated; while and that defendant rea- consideration of uncontroverted that evidence sonably perceived danger. a threat of Id. at the female had defendant refused the victim’s 651-54. intercourse; request engage to in sexual that in United States opinion Circuit’s them- Seventh infidelities, infidelities or the past Cir.1990): (7th F.2d Carey, 895 v. “wrong- such selves, constitute could ever ... behavior mitigate a sentence act of aberrant single A ful conduct” However, contemplates spontaneous con- Margaret’s if generally even murder. act rather thoughtless the at- seemingly before moments duct, as revealed the result of sub- was meaning than one which tack, wrongful within were act which planning because grossly was stantial 5K2.10, response the result of and is not any provocation.3 suddenly occurs disproportionate is one for (“A process concern for a continued Shortt, F.2d at 1328 reflective may arguably be re- which defendant the defendant’s proportionality accountable. less terms by the manifested sponse 5K2.10.”). Blankenship, added). also See (emphasis at 325 Carey, 895 F.2d Morin, v. 339; United States F.3d Marcello, the District Court Invoking Cir.1996) (concern (4th 124, 128 the murder that “indications found factors by the evidenced “is proportionality “insuffi- that there was spontaneous” consid- the court to § 5K2.10instructs Paster had show cient evidence to Dailey, 24 F.3d er”). States Paster, 17 Cf. killing of his wife.” planned Cir.1994) de- (affirming 1323, 1328 However, the District F.Supp.2d physi- who did not for defendant parture not com- “the murder was Court held victim); harm the cally because, manner,” mitted in a thoughtless (10th Cir.1994) Tsosie, found, time in ámple “Paster the court who for defendant (affirming stabbing to preceding the the minutes altercation with physical engaged wife,” to murder whether think about victim). denial we affirm Accordingly, times Paster stabbed “the number of pursuant of a downward thought about his wife indicates § 5K2.10. Id. The being done.” act as was no “[t]here
District Court concluded III. of aber- depart on the basis authority to ” Id. Marcello. rant behavior under challenges the District next Court’s challenges de grant downward refusal “thoughtless” as term construction behavior.” See parture for “aberrant *7 intro, According to court. A, by the Marcello 1, comment used Pt. Ch. U.S.S.G. Paster, interpreted the ¶ District Court 4(d). the ground court addressed This Marcello, thought” mean “without conscious term to v. in States United intent,” from distinguished (3d Cir.1994), or “without decided before 752 13 F.3d thought- “not well prior thought,” in “without decision Supreme Court’s landmark the out,” Appel- 81, premeditation.” States, or “without 116 518 U.S. Koon v. United (1996). argues He that this at 34-35. 2035, Em lant’s Brief 392 135 L.Ed.2d S.Ct. would render “thoughtless” from construction originated bracing the formula that be- Circuits, concept the of “aberrant Fifth, meaningless Fourth, Seventh a mens crimes entail because most havior” wrote that “[a]berrant Marcello court finding preclude rea that would planning; involve a lack must behavior argues Because Paster “thoughtlessness.” spontaneous act that is single it must be a misinterpreted Court that the District no consideration is thoughtless, Marcello, in we legal standard enunciated is a first- to the defendant given whether States plenary exercise review. (emphasis at add offender.” Id. 761 time Cir.1996). (3d 396, Sokolow, 411 91 ed). F.3d followed Marcello’s construction simply endangered, he “left physically were earlier Court on 3. The District found parents.” to live with marital residence learned of his wife’s Paster had occasions Paster, F.Supp.2d at 349. reacting 17 as if he infidelity, instead of but that
213
Also,
also United States v. Mariris-Castane
original).
See
the term “reflective” used
da,
Cir.1998),
134 F.3d
cert.
in Marcello clearly imports the concept of
—
denied,
U.S. -,
140 “thoughtful,”
antonym
“thought-
(1998);
L.Ed.2d 1103
United States v.
less.” See Webster’s Third New Interna-
Grandmaison,
(1st
(1971).5
Cir.
tional Dictionary 2381
1996) (undertaking plenary review because
of the foregoing,
view
the District
“adopted
court
wrong
district
stan
finding
Court’s
that Paster’s conduct was
dard”).
“thoughtless”
not
clearly
errone
ous, and
application
its
of the Marcello
upset
We decline to
supported
stаndard
the conclusion that on
rejecting departure.
Court’s decision
these facts Paster was not entitled
applied
District Court
legal
correct
departure.
Marcello,
conduct
Cf.
by properly focusing
standard
on the term
(district
is authorized adjustment pur additional one-level for an it into already take does Guideline That guidelines. § 3E1.1 of suant to is a dis- special factor If the account. is enti a defendant provides that section factor, encouraged factor or an couraged if decrease an additional one-level tled to appli- into already taken account for two-level for a decrease qualifies Guideline, the court should cable his offense acceptance responsibility, excep- present to factor is only if the greater, and he is sixteen or level way or in some other tional ordi- in thе investi- from the case different has assisted authorities makes the miscon- present. of his own prosecution factor is or nary gation where the case follow- in the Guide- or more of the by taking is unmentioned duct one aIf factor (1) must, considering complete lines, timely providing steps: ing the court after concern- theory government both relevant to the the structure information offense; and the Guide- involvement guidelines his own ing individual (2) whole, timely notifying decide whether authorities as a lines taken there- plea guilty, case out enter a to take the intention sufficient must to avoid government The court by permitting heartland. Giddeline’s expecta- permitting the for preparing mind the Commission’s trial bear in efficiently. grounds on based its resources departures court allocate tion that bewill Guidelines mentioned added). 3El.l(b) (emphasis U.S.S.G. highly infrequent. met the dispute that Paster is no There (citations marks criteria of 3E1.1: The quotation first two and internal added). reduction omitted) a two-level awarded him (emphasis responsibility and his acceptance an “unmentioned behavior Aberrant sixteen. greater level than offense Kalb, factor.” See United however, concluded, The District Court Cir.1997). here, So addi- qualify did not that Paster entirely upon the District Court relied deci- because his one-level reduction tional Having term. Marcello definition of jury was after plead guilty *9 sion to behavior was determined timely notifica- did not constitute selected Marcello, meaning of within the 3E1.1(b)(2). § meaning of within the tion to at- no occasion Paster, F.Supp.2d at 353. 17 from “the structure tempt extrapolate appeals this determination. Paster relevant individual theory of both First, although the argues he as a the taken guidelines and Guidelines
215
Court considered
timely
whether he
noti
the
Appellee’s
offense.”
Brief at 27-28
fied the government of his intent to plead
(emphasis in original). For example, the
guilty, it failed to consider whether he government alludes to evidence that Past-
timely provided complete information con
er initially told investigators that he did
cerning his involvement
in the crime.
“not remember” much of what happened—
Paster argues further that his statements
belied,
government
the
says, by his admis-
to the Bureau of
personnel
Prisons
who sions to the emergency operator
—and
responded to
call
his
to 911 support a he “did not want to talk about it.” Id. at
finding that he timely provided complete 28.
government
The
also
psychiatric
cites
information concerning his involvement in reports and
presentence
investigation
the crime—and therefore should have re
report, which purportedly
document
ceived the additional one-level reduction.
Paster attempted to ascribe blame for the
Because Paster contends that the District
killing to his wife’s revelation of infidelity.
error,
Court committed legal
de
review
Maurello,
novo. United States v.
76 F.3d
government’s
The
argument can
1304, 1308
1996).
Cir.
not cure the District Court’s failure to
We are persuaded that Paster has the
focus on and make findings with
respect
better of
argument.
this
prong
third
3El.l(b)(l).
See U.S.S.G.
app.
3E1.1
3El.l(b)
§of
is in
disjunctive.
United
note 5. See also United States v. Marr
Lancaster,
(4th
156,
States v.
112 F.3d
(1st
oquin,
220,
136 F.3d
Cir.1998);
Cir.1997);
Williams,
United States v.
Ortiz,
States v.
955-56
(D.C.Cir.1996);
(10th Cir.1995).
hand,
On the other
Eyler,
(9th
States v.
record contains
supports
evidence that
an
Cir.1995). By
terms,
plain
its
it is satis-
additional one-level reduction. For exam
fied if the defendant “has assisted authori-
ple, the District Court found that Paster
ties in
investigation
prosecution
called
reported that he had stabbed
his own
by
misconduct
taking one or more
wife, provided
directions to his home
(1)
the following steps:
timely providing
and the location of
weapon,
remained
complete information to
government
on the phone until
arrived,
authorities
concerning his own involvement in the of-
cooperated with authorities while the
(2)
fense; or
timely notifying
authorities
crime
Paster,
was investigated.
scene
his intention to
plea
enter a
of guilty....”
F.Supp.2d at 347-49. The District Court
3El.l(b)
added).
U.S.S.G. §
(emphasis
also concluded that “Paster has never de
The District Court
only
considered
wheth-
nied
stabbed and
er
killed his wife.”
criterion,
satisfied the latter
whether
While
District Court
he satisfied the
found that
former.
F.Supp.2d at
“was unable
353. Accordingly,
many
to remember
District Court erred as a
matter of
details of
law
the murder”
ques
when
3El.l(b)’s
failing
apply §
disjunctive
tioned
FBI agents, id. at
gov
Maurello,
standard.
216 reduction, A. one-level additional (9th 820, Stoops, v. 25 F.3d 822-23 argues that the District Cir.1994); Past- the fact that neither does articulating apply by not Court erred suppress. filed motion to The er convincing proof ing a burden clear findings establish no upward depar support to the nine-level claim, could cites support trier fact conclude of this reasonable ture. Kikumura, which estab to an additional not entitled Paster was departure sufficient See, lished that when “is e.g., United reduction. one-level can be ly great sentencing hearing that the Eyler, 67 F.3d States v. wags ‘a tail which fairly characterized as Cir.1995). we Accordingly, reverse and offense,’ ... dog of the substantive for Paster to be resentenced remand departure underlying that must factfinding additional one-level reduction reflect an at clear and con be established least his offense level. (quoting at vincing evidence.” Id. 477 U.S. Pennsylvania, McMillan V. (1986)). 88, 106 L.Ed.2d 67 S.Ct. Murray, See also United States final, extensive, chal- and most Paster’s Cir.1998), de cert. one the nine- lenge multi-pronged is a — nied, -, U.S. departure pursuant to Sen- upward level (1998). government con L.Ed.2d 209 The 5K2.8, tencing “Extreme Guidelines magnitude cedes that the of the up- That authorizes an Conduct.” section imposed, compared here base second the defendant’s con- “[i]f ward sentence, requires murder clear heinous, cruel, unusually brutal, duct was evidence, and the Dis convincing degrading to the victim.” U.S.S.G. or expressly trict Court did not recite explains guideline “[ex- 5K2.8. formula; argues, convincing clear and amples include of extreme conduct torture nonetheless, req that the evidence met victim, injury, gratuitous of a infliction of agree: Incanta legal uisite standard. We pain or or humiliation.” Id. prolonging convincing” tion of the term “clear and Here, evidence, summarizing after Kikumura, necessary on this record. “up- District Court concluded that some at 1104. upon un-
ward
based
Paster contends
heinous, cruel,
usually
and brutal conduct
proper
only
Court not
failed to recite the
Paster, 17 F.Supp.2d
is warranted.”
standard;
prove by
it failed to
clear and
up-
imposed
349-50.
It then
nine-level
that his
convincing evidence
conduct
depar-
departure.
ward
Id. at 350. The
heinous, cruel, brutal,
unusually
degrad
adjusted
ture
guideline
increased the
uncon
ing
аrgument
to the victim. This
range from 108-135 months to 292-365 vincing.
repudiated
prior
Paster never
top-of-the-range
months.
365-month
admissions that he killed his wife. Nor did
actually
imposed
sentence
213.5 months
dispute
gory
the extensive and
evidence
greater
range
than the median of
expert
concerning
killing, including
(135-168
base second
murder
and uncontradicted
pathologist’s extensive
months),
pled
which
guilty.
As
wounds,
testimony about the sixteen stab
by then-Judge
sem-
contemplated
Becker’s
penetrations
eight
to nine
of the heart
Kikumura,
opinion
inal
in United States v.
area,
the eleven incisive wounds that
(3d Cir.1990),
appraise
Id. at
humiliation.” *12 examples is exhaus- was outside the heartland this list of Paster’s conduct gues that tive, Kelly, Murray, v. 1 F.3d degree murder cases. citing United States of second Cir.1993). However, Kelly (10th fact, the n. judge 1137 F.3d 275 In the 144 at 7. articulating specif- heinous, only by that court ruled the explicit findings made about cruel, heinous, unusually examples ic of cruel, of- of and brutal nature Paster's conduct, pro- brutal, 5K2.8 degrading by pa- fense—particularly supported the for applica- its “objective vides standards testimony the that it was one of thologist’s cry a This is far from tion.” Id. at 1143. ever severely violent deaths most examples listed in a the three ruling that documented, F.Supp.2d 349—thereby 17 the universe of guideline constitute of demonstrating an awareness the rele- In- by condemned section. conduct a under- vant and commitment to standard deed, identifies these guideline itself departure only take a when warranted. just that: nonexclusive examples three considered, affirm foregoing All of the we conduct (“Examples extreme examples. to enhance the District Court’s decision (emphasis U.S.S.G. 5K2.8 include for conduct. Paster’s sentence extreme added)). extreme Paster’s conduct was with specifically even if it was branded D. provided one of three illustrative labels §in 5K2.8. Having concluded to prong challenge
As
of his
a second
by
Court did not abuse his discretion
ar-
finding,
extreme conduct
conduct,
awarding departure
for extreme
heinous,
no
gues
his crime was more
argument:
turn
Paster’s final
cruel,
in six
than that recorded
or brutal
in
upward departure,
the nine-level
which
example,
again
As
other cases.
an
than
by
years
creased more
seventeen
1137,
cites
1
where the defen-
Kelly, F.3d
sentence,
applicable median
was unreason
unconsciousness,
dant
the victim
choked
Sentencing
able. The
Commission estab
iron,
tire
beat the victim with a
struck the
spread
a 243-month
lished
between
handle,
jack
neck
victim in the
degree
median sentence for first
murder
in
dumped
body
pond.
victim’s
adjusted
rеduction
ac
by
two-level
See also United States v. Herr-
(364.5)
ceptance
responsibility
and the
(7th
era,
444,
Cir.1995);
445
Unit-
70 F.3d
degree
median
for second
murder
sentence
Anderson,
795,
ed States v.
5 F.3d
796-97 adjusted
two-point
for the same
reduction
(5th
Luscier,
Cir.1993);
v.
United States
(121.5).8
in
Yet the sentence levied
this
(9th
1507,
Cir.1993);
1509
degree
equal
second
murder case
241,
F.2d
Phillip,
States
degree
what
be a
murder
heavy
would
first
Roberson,
Cir.1991); United
aspect
sentence. This
of the sentence
(5th Cir.1989).
F.2d
While one
imposed gives
pause.
here
us
gainsay
brutality
cannot
of the conduct
cases,
perpetrated
hardly
in
fol-
these
sentencing
review of the
“Our
lows that Paster’s conduct was less deserv-
regard
court’s decision
this
deferen
ing
being
branded “extreme.”
Baird,
tial,”
United States v.
—
(3d Cir.1997),
denied,
true, however, the
cert.
U.S.
Even if
fact that oth-
-,
243,
between the Guideline governing first-de
VI.
gree murder and that governing second-
degree murder that fairly requires some
*15
Accordingly, we
affirm
will
the District
further attention by the District Court.
Court’s denial of
for
departures
aberrant Therefore, I concur with its decision to
provocation.
behavior and victim
Howev-
remand, as long as it is understood that
er, we will remand for resentencing to the District Court
retains
discretion to
reflect an additional one-level
for
reduction
depart upwards nine levels again
it
should
acceptance of responsibility. We
will
also
fully explain why it determined to do so.
remand with directions to the District
Court to
COWEN,
reconsider the nine-level upward
Circuit Judge, concurring in
part,
for extreme conduct
in
dissenting
part.
after
and
closer
examination of the
court
relevant
decisions
join
I
in all of the majority’s opinion
and for consideration of
proportionality
III,
except
Part
for
which affirms the Dis-
concerns raised by the coincidence of the
trict Court’s denial of Paster’s motion for a
degree
second
murder sentence and the
downward
based on aberrant
prescribed sentence
degree
for first
mur-
behavior. Because the District Court’s re-
der.
depart
fusal to
on that ground was,predi-
only
murder,
10.While the record
gov-
reflects
two-point
a
received
re-
ultimately
ernment
decided
to
seek
acceptance
duction for
responsibility,
of
he
119-20, 319,
penalty,
death
see App. at
it
exposed
likewise would have
to
been
an in-
statutory authority to do so.
18 U.S.C.
range
carceration
of 324-405 months. See
1111(b).
3E1.1,
("Conviction
U.S.S.G.
2
comment
trial
...
automatically preclude
does not
a
11. First
murder carries a base offense
from
accep-
defendant
for [an
consideration
43; assuming
level of
a two-level reduction
reduction.”).
responsibility]
tance of
See also
acceptance
for
responsibility,
an offense
Fells,
v.
States
78 F.3d
172
yields
level of 41
a sentence of 324-405
Cir.1996);
Barns,
United States v.
46 F.3d
a
months for
history
defendant in criminal
(8th Cir.1995) (“[D]efendant
goes
who
to
category
applicable
I.
range
drop
would
defense,
insanity
trial on an
advancing
thus
three-point
292-365 months
aif
reduction
an issue that does not
acceptance
relate
his
for
ed.
factual
respоnsibility were award
guilt, may
qualify
supra
accep-
See
nevertheless
for an
IV.
reduction”).
tance-of-responsibility
defense,
pursued
12.Had Paster
insanity
as
intended,
originally
been convicted
first
into the Guide
of,
incorporated
already
applica-
of the
misapprehension
a
cated on
formula,
that it would
sentencing
lines’
behavior
an aberrant
legal standard
ble
again
once
to factor
in
inappropriate
for re-sentenc-
be
remand
I would
departure,
behavior.
of aberrant
guise
could recon-
under
ing
so
Instead, we
Marcello,
stan-
at 761.2
the correct
motion under
sider
view,
articulated
majority
adopted
dard.
in
States
Circuit United
Seventh
by the
Marcello,
F.3d
States
(7th Cir.1990),
F.2d
Carey, 895
court,
Cir.1994),
consistent
this
inqui
behavior
focuses the aberrant
which
to have con
court
other circuit
every
itself,
on a
conduct
the criminal
ry on
issue,
recognized
sidered
in
commu
standing
“high
defendant’s
sentencing court
a
permit
Guidelines
Car
prior conviction.”
his lack
nity and
a de
where
a case
downwardly
in
approach,
at 324. Under
F.2d
ey, 895
fairly be
can
conduct
criminal
fendant’s
considering an aberrant
court
sentencing
a
of aber
“single act[ ]
as a
characterized
a
whether
must
decide
behavior
(quoting
Id. at 760
rant behavior.”
“
intro,
‘a
criminal behavior
A,
comment
defendant’s
Pt.
Ch.
U.S.S.G.
act
seemingly thoughtless
spontaneous
are not
¶4®).
appeal
The courts of
was the result
one which
however,
the correct defi
than
rather
agreement,
” Marcello,
F.3d
minority of
planning.’
A
behavior.
nition of
substantial
325).
“totality
Carey,
of the
adopted
(quoting
have
circuits
that,
im
name
a de
focusing
as its
on whether
test”
circumstances
The reason
sentencing court to consider
spontaneous
allows
act is
plies,
criminal
fendant’s
“
factors, including a defen
multitude of
occurs
‘an act which
unplanned is
record
a criminal
dant’s lack
of a contin
the result
suddenly and is not
deeds,
whether
assessing
prior good
is one for which
process
ued reflective
behavior
departure for aberrant
downward
accounta
may
arguably less
be
defendant
”
Zecevic v. United
See
appropriate.
in Mar-
Applying this standard
ble.’
Commission,
Parole
con
cello,
court’s
the district
we affirmed
*16
(2d Cir.1998);
v.
United States
734-35
defendant,
a one-
who over
that the
clusion
(1st
Grandmaison,
555, 564
Cir.
deposits to
bank
period structured
week
test,
1996).1
ex
totality
Under
reporting re
currency transaction
evade
“
all is
proponents,
‘when
by its
plained
an aber
was not entitled to
quirements,
done,
in
the conduct
question
said and
pre-
departure because some
rant behavior
departure from
a short-lived
truly be
must
the of
commit
planning
required
” Id. at 735
lawabiding life.’
an otherwise
Similarly, Carey,
in
the Seventh
fense.
Colace, 126 F.3d
v.
States
(quoting United
de
an aberrant
held that
behavior
Circuit
Cir.1997)).
(9th
1229, 1231
the defen
parture was not allowed where
check-kiting scheme
in a
engaged
had
rejected
totality
dant
We considered
period.
a
a fifteen-month
over
in
reasoned
approach Marcello. We
Glick,
See also United
there-
34-35.
history,
criminal
or lack
defendant’s
bolstered
conclusion has since been
following
2.
fac-
This
court listed
1. The Zecevic
applying
recognition in Koon
Supreme
considered in
courts have
Court's
tors that
“(1)
81, 113,
States,
the sin-
totality
test:
S.Ct.
of the circumstance
U.S.
act; (2)
de-
gular
(1996),
of the
nature
criminal
the Guide
135 L.Ed.2d
record;
(3) psychological
criminal
fendant's
depar
specifically prohibit
downward
lines
suf-
the defendant was
form which
disorders
History
ground
that Criminal
on the
ture
offense; (4) extreme
fering
the time of the
particular defen
Category
reflect a
I fails to
op-
defendant was
pressures under
which
low
recidivism.
dant's
likelihood
(5)
family
erating;
from friends and
letters
behavior;
defendant's
expressing shock at the
(6)
in com-
motivations
the defendant's
F.3d at 735.
mitting the crime.” 163
(4th Cir.1991) (no
witness
wife
his
to murder
about
thought
whether
case—where
facts
this
the
of
that test to
stabbing also
the
before
murder,
in the moments
the
plan the
did not
the defendant
disquali-
to
basis
be a sufficient
course
should
the
place over
took
episode
entire
departure.
behavior
for an aberrant
minutes,
fy
the
him
and
a few
more than
noof
Bostrom, while un-
Dr.
murder
crime within The
the
confessed to
defendant
crime, was
and
doubtedly a
heinous
brutal
no
and made
its commission
minutes of
meaning-
any
product of
certainly
the
culpability would
his
conceal
attempt to
—I
part
on the
reflection
or
ful deliberation
discre-
had the
the Distinct
hold that
are
Paster;
contrary, all indications
behavior,
the
on aberrant
depart based
tion to
in
and
spontaneously
acted
Paster
that
conclusion
Court’s
District
that
reve-
painful
deeply
response to a
series
authority”
award
“no
it had
that
these cir-
wife. Under
from his
lations
of law necessitat-
an error
that
cumstances,
majority’s conclusion
a remand.3
ing
fash-
“thoughtless”
act in
failed to
majority endorses
most literal
justified by the
only be
ion can
eligible
is not
that
holding
Court’s
term.
of that
wooden definition
departure be-
behavior
for an aberrant
however, that
say,
this is to
“thoughtless”
None
in a
not act
he did
cause
required
departure was
behavior
relies
majority
particular,
manner.
In
that
every crime
Not
case.
observations
on the District
pri-
without
spontaneously
committed
preceding
minutes
in the
time
Paster had
If
sentence.
actions,
merits
reduced
planning
to think about
the murder
record,
ex-
for
the factual
analyzing
times
many
so
after
his wife
Paster stabbed
Court concluded
ample, the District
thinking
have been
about
that he must
the culmi-
Bostrom
of Dr.
Maj.
the murder
committing it.
he was
murder while
domes-
pattern of
longstanding
of a
view,
my
of nation
neither
Op. at 212-13.
then a
part
tic violence on
support
conclusion
these reasons
on aberrant behavior
based
As
“thoughtlessly.”
act
did not
inappropriate.
obviously been
have
would
latter,
is conscious
if a defendant who
have also been unwar-
a A
would
during the commission
of his actions
Court concluded
if the District
ranted
have
aber-
not to
acted
crime is deemed
was suffi-
this case
planning
lack oí'
only be
departure will
rantly,
then
base offense
for
ciently accounted
of defen-
class
that minuscule
available to
murder. U.S.S.G.
second-degree
level
liable
crimes committed
who are
dants
v. United
2A1.2;
Koon
generally
see
reflex,
also
perhaps
involuntary
*18
95-96,
States,
S.Ct.
518 U.S.
at the
hypnotic
in a
state
are
those who
qual-
do not
in Marcello
principles announced
Court’s
the District
majority asserts that
3. The
depar-
ify
for an aberrant behavior
depart
authority
had
that it
“no
statement
agree. We
Op.
I
Maj.
at 214.
cannot
Mar-
ture.’’
behavior under
of aberrant
on
basis
experienced
the able
cello,” Paster,
presume
not
did
must
F.Supp.2d
said in
Judge
precisely what he
(i.e.,
District
meant
the District
really
what
said
mean
authority” to
concluding
“no
grant
thought it
discretion to
lacked
motion.
motion).
departure
downward
grant Paster’s
In-
departure
Paster’s downward
to recast
majority’s effort
stead,
mere-
majority posits, the statement
of discretion
as an exercise
decision
Court's
ly
District Court's determination
reflects
credulity.
applied
strains
of this case
that "the facts
(1996).
Court never reached these issues. It sum- UNITED STATES of America marily concluded that it had authority” “no under depart Marcello to because Paster’s
criminal act was not committed BRADLEY, William F. a/k/a “thoughtless” manner. Because that con- Bradley, Franklin clusion was based on an erroneous and overly restrictive understanding of the le- Bradley, William F. Appellant gal standard governing aberrant behav- in No. 97-5462. ior departure, we should allow Court to reconsider this issue re-sen- America tencing.
Finally, I offer a brief Mattison, comment concern- Jackie Appellant R. ing the District grant of a nine- in No. 97-5464. conduct,
level for extreme which 97-5462, Nos. 97-5464. nearly tripled the sentence that Paster Judge received. Oberdorfer has carefully United States Court of Appeals, identified the reasons why the structure of Third Circuit. applicable Guidelines and the case law render magnitude of that Argued Feb. 1999. unreasonable. I repeat shall not them April Decided I only here. add that at re-sentencing, for reasons, those same the District Court
should not impose a again up- nine-level
ward departure. While Judge Sloviter is
of course coi’reet that the District Court’s
decision great is entitled to def-
erence, equally it is true that:
A judge may say: “I have decided to
depart, so I now away guide- throw
lines.” guidelines are designed to openness
bring and consistency to sen-
tencing, to even out the effects differ-
ent judges’ perspectives on desert and
deterrence.... Unless there is disci-
pline in determining the amount of de- however,
parture, sentencing disparity reappear.
will Ferra, States v. (7th Cir.1990) (citation omitted).
1061-62 view,
In my nine-level im-
posed in case is emblematic of the
very sentencing disparities that the Guide- designed
lines were It counter. should repeated. be