UNITED STATES of America, Plaintiff-Appellee, v. Myles J. CONNOR, Jr., Defendant-Appellant.
Nos. 90-2669, 90-2687.
United States Court of Appeals, Seventh Circuit.
Argued Feb. 15, 1991. Decided Dec. 10, 1991.
947 F.2d 1267
Gregory Collins (argued), Stratton, Dobbs, Nardulli & Lestikow, Springfield, Ill., for defendant-appellant.
Before WOOD, Jr., and KANNE, Circuit Judges, and FAIRCHILD, Senior Circuit Judge.
FAIRCHILD, Senior Circuit Judge.
Myles Connor pled guilty to one count of possession of cocaine with intent to distribute; one count of conspiracy to distribute over 500 grams of cocaine; two counts of distribution of controlled substances; two counts of interstate transportation of stolen property; and one count of attempted escape. This appeal concerns Connor‘s sentence for these offenses. Under the sentencing guidelines, the district court initially determined an adjusted offense level of 24 (26 minus 2 for acceptance of responsibility) and a criminal history category of V. Accordingly, the sentencing table would yield a range of 92-115 months of imprisonment. The district court, however, decided to depart upwards and sentenced Connor to 240 months of imprisonment. United States v. Connor, 743 F.Supp. 582 (C.D.Ill.1990). On appeal, Connor contends that he had a criminal history category of IV, that the district court erred by departing from the guidelines range or, in any event, that the degree of departure is unreasonable, and that the sentence must be vacated because the district judge relied on materials he received which were not made available to Connor.
CONDUCT UNDERLYING THE OFFENSES
On December 6, 1988, Connor met with an undercover FBI agent and agreed to sell the agent a stolen grandfather clock for $10,000. Connor also indicated that he possessed other stolen works of art that he would be willing to sell. On January 11, 1989, Connor gave the agent two paintings as collateral for a $10,000 loan.
On January 12, 1989, the agent again met with Connor, and Connor agreed to sell the agent two kilograms of cocaine per week and a third kilogram every three weeks. During the meeting, the agent purchased 100 hits of lysergic acid diethylamide (LSD) and 93 tylox pills from Connor.
On March 1, the agent met Connor and gave him $24,000 to purchase cocaine. The plan was for Connor to fly to Florida, where he would purchase the cocaine for delivery to the agent the following week. The plan was successfully completed, and Connor was arrested upon his return to
The magistrate ordered that the defendant be held at the Menard County Jail pending trial. On June 11, 1989, the United States Marshal‘s Service received a letter from a confidential informant indicating that Connor and another prisoner, Lester Prier, had acquired some hacksaw blades and were planning to escape. Prier told federal agents that Margo Konces had sent Connor the hacksaw blades.
In an effort to apprehend Connor‘s accomplices in the escape attempt, agents made it appear as if the escape had been successful. The confidential informant placed a call to Margo Konces in Massachusetts on June 13 and told her that he had escaped with Connor. The confidential informant told Konces that the escaped prisoners needed transportation, and Konces stated that she would recruit Connor‘s girlfriend, Susanne Marie King. Plans were made to have King meet them at the Menard County fairgrounds. At the fairgrounds, an undercover agent posing as one of the escaped prisoners approached King, and King indicated that she had brought a .38 caliber handgun.
SENTENCING
In order to determine Connor‘s offense level under the guidelines, the probation officer separated the offenses into groups: the interstate transportation of stolen property counts; the cocaine counts; and the attempted escape count. Applying
In order to determine Connor‘s criminal history category, the probation officer reported on Connor‘s extensive criminal record. On February 27, 1967, Connor was convicted by a Massachusetts court of assault with intent to murder-armed. He was sentenced to 12-20 years. Although the sentence was imposed more than fifteen years before the commencement of the instant offense, his incarceration extended into the fifteen year period.
On April 20, 1971, Connor was sentenced by a Maine court to 1-2 years concurrent with the 1967 sentence. The offense was assault and battery and occurred in January, 1966, at age 23. The sentence was not counted in the criminal history because it was imposed and his imprisonment was completed more than fifteen years before the commencement of the present offense.
On December 2, 1975, Connor was sentenced by a federal district court in Massachusetts to 4 years, concurrent with the 1967 sentence. The presentence report refers to the charge as sale or receipt of stolen goods,
On April 20, 1976, Connor was sentenced by a Massachusetts court to 1-2 years concurrent with the existing sentence. The offense was possession of a dangerous weapon, a switchblade knife, on July 18, 1974, at the time of his arrest for the federal offense. This sentence was counted 3 points, and defendant argues that it should not have been counted because the case was related to the federal case.
DISCUSSION
A. Sentences in Related Cases Were Erroneously Counted Separately
Under the sentencing guidelines, the criminal history category is determined by adding three points “for each prior sentence of imprisonment exceeding one year and one month.”
We review the district court‘s application of the guidelines under a due deference standard.
We think the possession of the weapons on July 18, 1974, must be deemed to have occurred on the same occasion as the possession of stolen goods at and prior to the same date. We think this is true for the purpose of the guidelines even though Connor probably had also possessed the goods for some period up to the arrest, while he was negotiating the sale with the FBI, and may not have possessed the weapons throughout the same period. This conclusion accords with a common sense definition of “occurred on a single occasion.” We also note the probability that if all these offenses had been federal offenses the cases would have been consolidated for trial and deemed related for that reason.
On appeal, the government does not argue that the offenses did not occur at the same time but rather argues that it is incorrect to think of single occasion only in terms of time. The government suggests, “A better interpretation of the meaning of ‘single occasion’ is whether cases are so totally factually related and inextricably intertwined as to make the acts involved one.” Even under the government‘s definition, Connor‘s offenses may have been related because he most likely had the knife and pistol to defend himself and possession of the very valuable stolen goods.
Nonetheless, courts which have mentioned the “single occasion” requirement have referred to it in terms of time. See United States v. Davis, 922 F.2d 1385, 1388 (9th Cir.1991) (no issue of whether offenses occurred on a single occasion because defendant did not even “argue that they occurred within the same general time period“); United States v. Bishop, 921 F.2d 1068, 1072 (10th Cir.1990) (Ebel, J., dissenting) (offenses are close to meeting single occasion test when they occur within a week and are “closely related from a temporal point of view“), cert. denied, ___ U.S. ___, 111 S.Ct. 2034, 114 L.Ed.2d 119 (1991); United States v. Jones, 899 F.2d 1097, 1101 (11th Cir.) (cases did not occur on a single occasion because an hour and a half separated the two robberies), cert. denied, ___ U.S. ___, 111 S.Ct. 275, 112 L.Ed.2d 230 (1990).
The government supported its definition of “single occasion” by relying on United States v. Garcia, 909 F.2d 389 (9th Cir.1990), but Garcia concerns the definition of a “prior sentence,” not the definition of “single occasion.” A “prior sentence” is “any sentence previously imposed ... for conduct not part of the instant offense.”
Because the 1975 federal case and the 1976 Massachusetts case are related, only one sentence should have been counted, putting Connor in criminal history category IV. The properly calculated guidelines range would have been 77-96 months. This conclusion, if no other, will require a remand to determine the proper extent of any departure. The departure made by the judge was the difference between a range of 92-115 months and 240 months. The 240 month sentence cannot be sustained without justifying a greater departure, i.e. between 77-96 and 240, and the district court rather than we should make this determination.
B. Upward Departure
A court may depart from the guidelines if “the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines.”
Judge Mills identified five reasons for an upward departure:
First, were it not for the fact that several of the defendant‘s prior felony convictions were excluded because of age or because they were related cases, the defendant would be sentenced as a career offender under
Connor, 743 F.Supp. at 585. We will review each of these justifications to determine whether they are appropriate grounds for departure before we consider the degree of departure.
1. Consideration of Sentences Not Counted Because of Age or Being Related
We will consider the first two justifications together. Judge Mills considered sentences which had not been counted either because they were too old or were pronounced in cases related to cases in which the sentences were counted. He reasoned that some of these were for crimes of violence and that if they had been counted, defendant would have been a career offender with a range of 262-327 months.
The guidelines say that in some situations “the criminal history category does not adequately reflect the seriousness of the defendant‘s past criminal conduct or the likelihood that the defendant will commit other crimes” and that in these situations upward departures are necessary.
The Sentencing Commission recognized that its definition of “related cases” could be overly broad and could create a situation that required an upward departure to adequately reflect the defendant‘s past criminal conduct. The Commission explained,
[I]f the defendant commits a number of offenses on independent occasions separated by arrests, and the resulting criminal cases are consolidated and result in a combined sentence of eight years, counting merely three points for this factor will not adequately reflect either the seriousness of the defendant‘s criminal history or the frequency with which he commits crimes. In such circumstances, the court should consider whether departure is warranted.
Although courts have frequently relied on related cases to justify upward departures, the departures usually occur in situations which closely resemble the example provided by the Commission. E.g., United States v. Hines, 943 F.2d 348 (4th Cir. 1991); United States v. Williams, 922 F.2d 578, 582 (10th Cir.1990), cert. denied, ___ U.S. ___, 111 S.Ct. 1637, 113 L.Ed.2d 733 (1991); United States v. Ocasio, 914 F.2d 330, 335 (1st Cir.1990); United States v. Medved, 905 F.2d 935, 942 (6th Cir.1990), cert. denied, ___ U.S. ___, 111 S.Ct. 997, 112 L.Ed.2d 1080 (1991); United States v. Williams, 901 F.2d 1394, 1397-98 (7th Cir.1990), cert. granted and vacated, ___ U.S. ___, 111 S.Ct. 2845, 115 L.Ed.2d 1014 (1991); United States v. Dorsey, 888 F.2d 79 (11th Cir.1989), cert. denied, 493 U.S. 1035, 110 S.Ct. 756, 107 L.Ed.2d 772 (1990). In Ocasio, 914 F.2d at 335, the First Circuit said departure was justified when “[s]heer fortuity, rather than the conscious design of the Sentencing Commission, seemingly led to consolidation of certain charges, involving essentially unrelated crimes committed at widely divergent times.” In Ocasio, there were three sets of related cases, and the court explained that those crimes which were “interconnected in fact” were properly grouped together but that crimes “occurring on completely different dates and involving completely different victims” were a basis for upward departure. Id.
We could find only two cases in which a court departed from the guidelines to account for related cases when the related cases occurred on or near the same day. In the first case, United States v. Rivas, 922 F.2d 1501, 1503 (10th Cir.1991), the related cases were first degree murder and kidnapping, the offenses had occurred as recently as 1982, and the defendant had received consecutive life sentences. The court allowed departure because
the addition of a mere three points ... does not adequately reflect the exceedingly serious nature of his previous crimes nor does it reflect the danger that he poses to the public. As the district court noted, the logic of treating these separate and violent crimes against two victims as one prior sentence is not readily apparent, at least as far as measuring the gravity of the defendant‘s prior offenses is concerned.
Id. at 1504 (citation omitted). Although Connor‘s prior crimes are serious, they are not extraordinary or atypical like the crimes in Rivas.
In the second case, the related cases were attempts to kill three separate victims. United States v. Jackson, 903 F.2d 1313, 1318 (10th Cir.1990), rev‘d on other grounds, 921 F.2d 985 (10th Cir.1990). In Jackson, the court explained that attacks on several victims on a single occasion are not grouped together for the purpose of determining the offense level,
Because Connor‘s offenses are not categorized as related cases as the result of an overly broad definition of “related cases” and because his related offenses are not of a kind or degree not contemplated by the Sentencing Commission, the related cases are not an appropriate ground for departure.
Next we must consider whether the 1971 conviction which was excluded because of age is an appropriate ground for departure. Under the guidelines, a prior sentence exceeding one year and one month is not counted if it occurred and the resulting incarceration ended more than fifteen years before the commencement of the instant offense.
If the government is able to show that a sentence imposed outside this time period is evidence of similar misconduct or the defendant‘s receipt of a substantial portion of income from criminal livelihood, the court may consider this information in determining whether to depart and
sentence above the applicable guideline range.
If we were to apply the commentary, an upward departure would not be appropriate. Connor‘s old offense is not similar to his current offense, and the district court did not find that Connor has derived substantial income from criminal livelihood. The uncounted conviction is an assault and battery which occurred in 1966.3 According to the presentence report, “Mr. Connor and his wife were arrested for breaking, entering and larceny in the night time for theft of antiques from a private home. Mr. Connor assaulted the arresting deputy sheriff. He assaulted another deputy during an escape attempt seven days later.” Although there is a similarity in that Connor was stealing antiques in 1966 and he is now selling stolen art, the crimes for which Connor was convicted are different.
Some courts, however, have allowed an upward departure when there is a serious history of criminality regardless of whether the specific requirements in the application note are met. E.g., Jackson, 903 F.2d at 1318; United States v. Carey, 898 F.2d 642, 645-46 (8th Cir.1990). One court held the defendant‘s old convictions should be considered because the defendant had spent eleven of the past fifteen years in prison; the fact that he had not been convicted of any crimes in the past fifteen years did not indicate he was not a recidivist. United States v. Russell, 905 F.2d 1439, 1444 (10th Cir.1990). Connor has spent over half of the past fifteen years in prison4 and, like the defendant in Russell, has in the past displayed a tendency to return to a life of crime soon after he is released.
Although this court has never specifically said that a pattern of counted and uncounted convictions is special enough so as not to have been adequately considered by the Commission, and therefore justify upward departure, two cases have allowed upward departures to account for old convictions in situations that do not clearly come under the commentary. In United States v. Dzielinski, 914 F.2d 98, 101 (7th Cir.1990), this court affirmed a district court‘s decision to depart upwards. Although the offenses with sentences too old to be counted and the current crime were not similar, the defendant‘s motive for the old crimes was the same as his motive for the current crime: to obtain money to repay a victim of the defendant‘s illegal investment scheme. In United States v. Williams, 910 F.2d 1574, 1579 (7th Cir.1990), cert. granted, ___ U.S. ___, 111 S.Ct. 1305, 113 L.Ed.2d 240 (1991), this court affirmed an upward departure even though the old crimes were not similar to the current crime because the old crimes were “‘reliable information’ indicating more extensive criminal conduct than otherwise reflected by the criminal history.” Although in United States v. Fonner, 920 F.2d 1330 (7th Cir.1990), this court held that a long series of misdemeanors which were not counted was not an appropriate basis for an upward departure, the court did not foreclose the possibility that departure would be appropriate even if old offenses were neither similar nor an evidence of criminal livelihood. The court simply stressed the need to identify some “circumstances ‘not adequately taken into consider
As has been pointed out there is a slight similarity between the conduct underlying Connor‘s 1971 sentence for assault and battery and the instant offense. We are not prepared to say, in light of the decisions of this and other courts, that this could not be a proper reason for upward departure, but Judge Mills did not focus on this comparison. On remand, the district judge will be free to consider the similarity between the offenses, the fact that Connor was in jail for over half of the past 15 years, the seriousness of Connor‘s criminal history, and any other exceptional factors in order to decide whether a departure is justified.
2. Consideration of Similarity between Offenses
The district court‘s third justification for departure is that the similarity between the instant conviction for interstate transportation of stolen property and the 1975 conviction involving property which has crossed a state line after being stolen shows the need for greater deterrence. Both offenses involve attempts to sell stolen art. Connor concedes that in many cases this is an appropriate basis for departure. See Williams, 901 F.2d at 1398-99, cert. granted and vacated, ___ U.S. ___, 111 S.Ct. 2845, 115 L.Ed.2d 1014 (1991); United States v. Schmude, 901 F.2d 555, 559 (7th Cir.1990). However, he argues that the court cannot depart in this case because his offense level was increased by four levels because of his prior conviction; thus, the need for extra deterrence was already adequately considered. Connor‘s offense level was increased by four levels because he was “in the business of receiving and selling stolen property.”
3. Consideration of Otherwise Uncounted Attempted Pretrial Escape
The district court‘s fourth justification is that neither Connor‘s offense level nor his criminal history level reflected an increase based on his attempted escape. The district judge explained that the offense level was too low because the guideline provisions for calculating the offense level in multiple count cases prevented the attempted escape count from affecting the offense level. See
The background commentary to
The Eighth Circuit has recently rejected a very similar argument. United States v. Cox, 921 F.2d 772, 774 (8th Cir.1990). In Cox, the court said that a conviction for escape from pretrial detention which did not cause an increase in the offense level for bank robbery did not warrant an upward departure. The court explained that the Sentencing Commission had determined how to calculate the offense level when multiple counts were involved, and an escape was not sufficiently unusual to warrant disregarding the guidelines. We agree with the Eighth Circuit.
The district court also thought upward departure was necessary because the attempted escape was not properly reflected in the criminal history category. According to the court, only an arbitrary distinction in
Moreover, the distinction is not arbitrary. Section 4A1.1(d) applies to all offenses committed “while under any criminal justice sentence, including probation, parole, supervised release, imprisonment, work release, or escape status.” The offense may be an escape, as it was in United States v. Jimenez, 897 F.2d 286 (7th Cir.1990), but
The district judge relied on Jimenez, 897 F.2d 286, to support his reasoning, but Jimenez merely holds that
4. Consideration of Gun Possessed by Confederate
The district court‘s final justification for upward departure is that a gun was involved in Connor‘s escape attempt. Connor himself never had possession of a gun and nothing shows that he directed others involved in his attempted escape to supply a gun. The district court, however, held that Connor “certainly could have foreseen that one of those he involved in
Although a court may depart upwards when a “weapon or dangerous instrumentality” is used,
Under an analogous section,
5. Instructions for Remand of Case
We have held that on remand the district judge will be free to consider whether the background similarity between the conduct underlying the uncounted 1971 sentence and the instant one, taken with other circumstances, justifies an upward departure. We have also held that on remand the enhancement for obstruction of justice by reason of attempted escape, and adjustments required by that change, may be applied.
As already pointed out, a remand is necessary, and we need not attempt to decide
On remand, the court should also consider that Connor cooperated or offered to cooperate with the FBI on several matters. Although much of Connor‘s offers were not helpful to the FBI, the government stated that it would not move for upward departure because of Connor‘s cooperation. The district judge did not mention Connor‘s cooperation, but on remand, the judge should at least consider whether Connor‘s cooperation should affect the extent of departure.
C. Ex Parte Communications
Connor argues that resentencing is necessary because the district judge received information purporting to describe past criminal activity of Connor in Massachusetts. This information was contained in letters to the judge enclosing newspaper clippings and was not reflected in the record or presentence report. Neither Connor nor the prosecution was aware of the material until after sentencing.
In remarks at sentencing the judge made somewhat vague references to past bargaining between Connor and the authorities. Some of these references do not reflect anything in the record and are at least consistent with the judge‘s awareness of the content of the letter material.
When the defense and prosecution brought this material to the judge‘s attention, he entered an order noting that unsolicited material is often received, and reciting that under his standard procedure he glanced at these items and forwarded them to the clerk‘s office or the probation office. He stated unequivocally that he “did not rely on anything contained in the letters or the newspaper articles in arriving at the defendant‘s sentence.”
We think a trial judge should endeavor to insulate himself from materials of this type unless he makes them known to the parties. In United States v. Curran, 926 F.2d 59 (1st Cir.1991), the First Circuit remanded a case for resentencing where the facts were very similar to those here. The court invoked its supervisory powers to justify reversal and explained that although the district judge had followed the Federal Rules of Criminal Procedure, it was important “that a judicial procedure must not only be just but must appear to be just.” Id. at 64.
We need not decide whether appearances in the instant case would require resentencing, as in Curran. Resentencing is required here for other reasons, and we have decided that a different judge should preside.
CONCLUSION
We VACATE Connor‘s sentence and REMAND for sentencing consistent with this opinion. Circuit Rule 36 shall apply on remand.
KANNE, Circuit Judge, concurring in part and dissenting in part.
As the majority states at page 8: “[t]his conclusion [that the defendant should have been sentenced as a Criminal History Category IV defendant], if no other, will require a remand to determine the proper extent of any departure.” Having arrived at that conclusion, I believe that the court should not range any further to reach the other issues addressed.
The new sentencing judge should be free to determine the proper extent of any departure based on a fresh examination of the facts. By resolving or suggesting the resolution of the sentencing issues relating to departure, I believe the majority has effectively constructed an “appropriate” sentence and significantly foreclosed the
“It is not for us to determine the appropriate sentence here even with the use of the Guidelines. See
I concur in the decision of the court to vacate the sentence given the defendant and the remand for resentencing under Criminal History Category IV. I dissent from that part of the majority opinion which requires the district judge to forego analysis of certain departure considerations and directs consideration of other specific factors.