*1
803
tаken with each al-
...,
im- measures that would be
of the environmental
of alternatives
alternatives,
ternative,
and
as well as the social and economic
proposed action
pacts of the
persons
agencies
affecting
and
consult-
each alternative.
listing of
factors
and a
1508.9(b).
40 C.F.R.
ed.”
EA
evaluating
complies
whether an
When
NEPA,
must
careful to avoid
a discus with
we
EA must contain
an
While
alternatives,
requirements
an
confusing
of
NEPA’s
for
EIS
alternatives
sion
unique
must consider “de
EA.
case is
Forest Service
with those for an
This
impact of
as the environmental
the LRMP has been remanded for
creases
because
less and less sub
proposed action becomes
reanalysis and harvest-method decisions are
Better
Citizens
stantial.” Olmsted
compartment-level
made on a
basis.
to be
for
States,
201,
793 F.2d
Community v.
analy-
United
fact
the NFMA
affects
Cir.1986)
(8th
(upholding consideration
208
analysis. The EAs
sis more than the NEPA
finding
range of alternatives when
a limited
“rough-cut, low-budget”
in this case remain
impact was
significant environmental
of no
documents that are tiered to the FEIS and
made). Notably,
court in Sabine
the district
objectives
incorporate
the still-relevant
“[although
consideration
pointed out
requirements
of the LRMP. When ex-
any
range of alternatives
essential
some
light,
amined under this
we conclude
assessment,
little
it makes
environmental
adequately
EAs
address the need
failing
agency
to consid
to fault
sense
alternatives,
proposal, the
the environmental
environmentally sound alternatives
er more
agencies
persons
consequences, and the
properly deter
project which it has
to a
consulted.
mined,
not to file an
through its decision
statement,
significant
have no
impact
will
VI.
anyway.” Sabine Riv
environmental effects
We conclude that the district court erred
Interior,
Dep’t
v.
er Auth.
United States
preliminary injunction.
granting
We
(E.D.Tex.1990) (internal
388,
F.Supp.
745
399
REMAND.
VACATE AND
omitted), aff'd,
Missouri (8th 980, Comm’n, Cir.
merce 33 F.3d 984 1994); City New York v. United States (2d 732, Transp., F.2d 744
Dep't Cir. dismissed, 1983), appeal U.S. (1984). L.Ed.2d 730
S.Ct. America, UNITED STATES of disagree court. We with the district Plaintiff-Appellee, it, prepared EAs the For As we see appear est Service for the nine timber sales satisfy requirements. likely to NEPA’s ASHBURN, Philip Defendant- Scott First, four eight of the nine EAs consider Appellant. alternative, an a no action un alternatives: alternative, No. 93-1067. even-aged management and two even-aged management alternatives. The Appeals, United States Court of ninth EA considers the four above alterna Fifth Circuit. manage uneven-aged and an additional tives alternative. The EAs also discuss the ment Nov. proposal, agencies per need for the consulted, and the environmental effects sons alternative, including each
of each the effects wildlife, vegetation,
alternative would have
soils, water, air, recreation, and cultural re mitigating examine the
sources. The EAs
805 *2 under the range for Ashbum’s offense
priate Sentencing was 63 to 78 months. Guidelines that this determined court also adequately reflect Ashburn’s range did *3 of recidivism or likelihood departed upward, sentencing Ash- thus imprisonment. to 180 months burn appealed panel A his sentence. Ashburn part, but held that court affirmed of this required because the district remand was improperly considered dismissed for the of the indictment as basis offered suffi- upward departure and had not justification for a under Sec- cient banc, en we On tion 4A1.3.1 reconsideration improp- was not that the conclude Crooks, Timothy Asst. Henry, Timothy J. er, imposed sentence and we affirm the Kirkendoll, Defenders, Ira R. Public Federal district court. Worth, TX, Defender, Fort Public Federal appellant. for I. BACKGROUND Lockhart, Stokes, Asst. Joe C.
Christopher Atty., Stephens, U.S. Attys., Richard H. U.S. 26,1992, Ashburn, along with a August On Watson, TX, Worth, Asst. U.S. Delonia Fort co-defendant, single-count for a was indicted TX, Dallas, appellee. Atty., robbery in of 18 U.S.C. violation of bank 2113(a). superseding
§
A
indictment
three
additional
charged Ashburn with
pled guilty
robbery. Ashburn
counts of bank
guilty
for the
3 and 4.
return
to Counts
POLITZ,
Judge,
Before
Chief
agreed to dismiss
plea,
GARWOOD, JOLLY,
KING,
GOLDBERG,
forego prosecution of
2 and to
counts 1 and
JONES,
DAVIS,
HIGGINBOTHAM,
attempted robberies.
additional
two
BARKSDALE,
WIENER,
DUHÉ,
SMITH,
BENAVIDES,
DeMOSS,
GARZA,
charged
with a bank
E.
Count 3
Ashburn
PARKER,
Judges.
3,
July
Circuit
on
1992
robbery
which
STEWART
occurred
$4,167
the Bank of
was stolen
PARKER,
Judge:
Circuit
M.
ROBERT
Worth,
Count
in Fort
Texas.
America
robbery in which
charged Ashburn with
again the
us to examine
requires
This ease
$32,000
stolen
in cash was
approximately
4A1.3 of
subject
departures under Section
Hurst,
on
Texas
American
from the
Bank
Specifi-
Sentencing Guidelines.
the Federal
charged
31,1992.
July
The dismissed
whether conduct
cally, must
we
address
Arlington National
robbing
Ashburn with
indictment
counts of an
the basis for
formed
27,
Arlington,
on December
Bank
Texas
plea agreement
pursuant
Worth,
Savings in Fort
and Sunbelt
departing upward from
be considered
17,
January
Texas
Guidelines,
the issue
and we must revisit
depar-
justification required for such
investigation
report
presentence
Lambert, 984
v.
under United States
ture
(PSR)
prior to Ashburn’s sentenc-
prepared
(en banc).
(5th Cir.1993)
F.2d 658
pled guilty
he had
that in 1984
ing revealed
armed,
Portland, Oregon.
bank
Philip Scott
plea agreement,
to a
Pursuant
offense,
year
a six
Ashburn served
For this
of bank
guilty to two counts
pled
Ashburn
2113(a).
Attorney Gen-
custody
robbery in
of 18 U.S.C.
violation
Youth Corrections
the Federal
eral under
appro-
The district court determined
1994).
Ashburn,
(5th
Cir.
20 F.3d
1. United States
Act,
5010(b).
formerly
West,
at
codified
18 U.S.C.
just
job.”
Florida and told her “I
did a
The PSR assessed three criminal
Eckert confirmed that a bank robbery was
points against
Ashbum
convic-
reported
West,
in Key
Florida on
speci
tion, producing
History Category
a Criminal
day.5
fied
Eckert also
regarding
testified
presentence report
of II.2 The defendant’s
evidence of Ashburn’s involvement
in at
Oregon
from the District of
indicates that in tempted
Watauga
robberies of the
State
pled
addition to the
to which
offense
Bank Wataugа,
July
Texas on
guilty, he had committed four
bank
other
Arlington
and the
National Bank in Arling
Oregon
robberies in
and one in Salt Lake
ton,
July
Texas on
1992.6
City, Utah.3'
The district court concluded that Criminal
*4
appropriate
After
enhancements and a
History Category II
adequately
did not
re-
Acceptance
three -level
for
reduction
of Re-
flect the seriousness of
past
Ashburn’s
con-
sponsibility,
Total
Ashbum’s
Offense Level
duct or the likelihood that he would commit
was determined to be 25.4 With this offense
judge
additional crimes. The
therefore de-
II,
level and a
Category
parted upward, sentencing Ashburn to serve
provided
Guidelines
for a
180 month
imprisonment
terms of
concurrent
court,
of 63 to 78 months. The
dissat-
on Counts 3 and 4. The court also sentenced
range,
parties
isfied with this
notified the
year
to a
Ashbum
3
supervised
term of
provisional
depart
its
upward
intention
release, and a mandatory $100 assessment.
from
range.
appeal,
On
Ashburn contends that
the dis-
support
To
departure,
the upward
gov-
trict
erroneously
calculated his offense
ernment called
Investiga-
Federal Bureau of
level and
history category
and madе
(FBI)
Eckert,
agent,
tion
Deborah
who testi-
various errors in its
depart up-
decision to
at
sentencing hearing
.fied
about
in-
her
ward.
vestigation into
robberies
several
and at-
tempted
for which Ashburn was
.robberies
A panel of this court
found
Ashburn’s
believed to
responsible. Agent
Eckert
objections to the offense level and criminal
described an interview she conducted with
history category were without merit.7 How-
co-defendant, April
Ashburn’s
Jeanette En-
ever,
panel
held that the district court
glish.
interview, English
In that
asserted
adequately
failed
explain
its reasons for
that Ashbum admitted to her that he had
upward departure.8
addition,
pan-
committed two earlier robberies in December
el
held that
the counts dismissed
January
1991 and
of 1992. These two
pursuant
plea bargain
to the
should not have
robberies had been confirmed in detail and
been
effecting
considered in
upward
de-
charged
were
1 and 2 of
Ashburn’s
parture.9 The
argued
dissent
nothing
indictment.
plea agreement
or
pre-
the Guidelines
English
also told Eckert that on April
cluded the district
using
court from
the dis-
English
Ashburn
Key
called'
from
missed counts to enhance the defendant’s
sentences,
2.
only prior
The Guidelines include
the offense level
under
calculation
the relevant
conduct,
prior
offenses
provision
or
calculat-
part
conduct
as a
of the same course of
ing
category.
U.S.S.G.
plan.
conduct or common
scheme
U.S.S.G.
§
1B1.3(a)(2).
4A1.1.
§
5.
charged
report
robbery.
Ashbum was not
3. The
with this
also notes that "Ashburn was un-
questionably
ringleader
in these bank robber-
them,
planned
part
ies. He
6. As a
recruited
accomplices
bargain,
agreed
charge
prosecute
assist him and
dividing
not to
was-
Ashbum for these two
proceeds
addition,
attempts.
report
afterwards."
indicates that a loaded revolver was used in three
of the robberies.
7.
plain
account,
Histo-
the Criminal
taken into
to be
inappropri-
guidelines is
under
calculated
sufficient
ry Category
would
VI
ap-
category it chooses
ate,
why conduct.”
past
into account
take
at 662-63.
propriate.
Id.
attempted
referred to the
The court also
agreed not
time,
it clear that
robberies
we made
At the same
given the
stated
court
prosecute. The
court
require the district
...
we do not
other
will commit
the defendant
“likelihood
it
ritualistic exercise
through a
go
of his
as the seriousness
... as well
crimes
criminal histo-
each
mechanically discusses
im-
the court
conduct”
past criminal
the cate-
rejects en
ry category it
route
drastic
pose
“rather
Ordinarily
district
that it selects.
gory
contemplates.”
from what
rejecting intermediate
court’s reasons
to a term
judge then sentenced Ashburn
if not
implicit,
clearly be
categories will
months,
by
found
of 180
imprisonment
for its
explanation
court’s
explicit, in the
Category of
indexing the Criminal
un-
category calculated
departure from
level of
an offense
with
VI
explanation for
its
guidelines and
der
appropriate.
it has chosen
category
by
dis
justifiсation offered
find
reasoning, we
Using this
Id. at 663.
why the sentenc
clearly indicates
trict
justi-
adequate
court offered
that the district
Guidelines
ing range recommended
imposed.
for the sentence
fication
found
why
inappropriate
appropriate.
imposed to be
*7
the sentence
the district
sentencing hearing,
At
expressly examine
did not
The district court
his con-
on the record
judge indicated
category.
intervening criminal
each
the defen-
by the fact that
cern was caused
court
require
district
we do
in
robberies
a series
bank
committed
dant
exercise”
a “ritualistic
through such
go
of robberies
another series
and then
the stated
where,
here, it is evident from
1991,
years after
than
in
less
two
beginning
bypassed
why the
departure
grounds for
following the
supervision
from
his release
inadequate.
categories were
criminal
Since Ashburn’s
1984 conviction.
Lambert,
F.2d at
solely on the
history calculation was based
1984,
robbery in
count of
plea to one
guilty
we could
Lambert, we indicated that
guideline
indicated
the court felt
in
cases”
class of
“very narrow
of a
conceive
the serious-
аdequately reflect
range did “not
was so
court’s
the district
conduct
past criminal
ness of
defendant’s
in
“explanation
require
that we would
great
the likeli-
and,
importantly,
more
perhaps
reasons
the district court’s
careful detail”
crimes.”
will commit other
hood that he
defen-
adjustments in the
finding
lesser
inadequate.
Id.
history score
had the
dant’s
judge determined
The district
case
imposed in this
sentence
Although the
of the
been
previously
convicted
the recommended
twice
more than
was
December
robbery
committed in
offenses
sort of drastic
not the
1992,
range, it was
guideline
he
April
January of
to in Lambert.
referred
departure we
criminal his-
nine additional
have had
departure is
fact,
the instant
calculations,
we note that
points.
the court’s
tory
Under
(en banc).
(5th Cir.1993)
16.
significantly greater
departures previ-
than
bounds,
both uncharted and out of
I would
ously approved by this court.
So,
See United
reverse.
put
let us
on the habiliments of
McKenzie,
States v.
991 F.2d
205 n. 7
an astronaut
journey
as we
into the world of
(5th Cir.1993); Lambert,
(af-
guideline range). I controvеrsy presented to this en banc C. Departure of the Reasonableness court is whether a sentencing court can con- question The final we must address is sider upwardly depart- whether the district court’s from ing from sentencing guidelines, and the the Sentencing Guidelines was reasonable degree to which sentencing a court must light of the court’s justification. articulated explain its actions when it depart decides to We Although hold it was. the ultimate from guidelines. The defendant in this potential rose 78 months case, Philip Ashburn, Scott charged with months, under the to 180 this re four counts of armed robbery. bank Pursu- sult is not in light unreasonable of the evi ant to bargain, pleaded guilty dence of numerous instances of past criminal to two counts of armed bank conduct, which were not considered in the return for a dismissal of remaining two history calculation, and the over promise counts and a prosecute not to other whelming indication that the defendant was crimes which he suspected of commit- inclined to return ato similar course be ting. After the court accepted havior. guilty plea, it decided Ashburn’s Category adequate- did not III. CONCLUSION ly reflect the seriousness of his criminal con- duct or his likelihood of recidivism. The Parts II.A. and B. panel opinion are court noted that if Ashburn had been convict- REINSTATED, parts all other panel ed of the with, crimes he had charged been opinion VACATED, remain and the sentence as well as other crimes suspected he was imposed by is, therefore, district committing, he would have Criminal Histo- AFFIRMED. ry Category of VI. The court then sen- tenced Ashburn as he had been convicted GOLDBERG, Judge, Circuit with whom of those crimes that were either dismissed or DeMOSS, Circuit Judge, joins, dissenting: charged never place. the first This result- This case calls for us to examine months, ed a sentence of 180 per- or 230 of information con- cent of the maximum range for the sider upwardly departing from the sen- crimes for which Ashburn wás actually con- guidelines. tencing The majority opinion victed. *8 skyward takes a view of the information a imposed The by the sentencing sentencing consider; court may pre- I would court permitted by not guidelines, the keep fer to the informational vistas sen- and was lacking in the full adequate tencing courts a little closer to the horizon. justification required by guidelines the for a Thousands of pages and countless words departure. Each issue will be in addressed have been written in connection with the turn. sentencing guidelines. The issues in this require case that we add a pages few more to II the existing dynamic wisdom of this most area of law. In this case the sentencing majority The argues that dismissed guidelines indicated a nadir sentence of charges may be taken by into account a months, and sentencing the court took some sentencing in augmenting court a defendant’s astronomical route to attain apogeic an sen- History Criminal Category. support To this tence of 180 months. Believing conclusion, that the majority the makes a three-step by course taken sentencing the argument. First, it cites U.S.S.G. 4A1.3 charges in con- using contemplated dismissed sentencing court a that proposition the
for
His-
departures
Criminal
with
sentencing
nection
the
depart from
upwardly
may
There
indications
Category.
tory
mitigat-
aggravating
finds
guidelines
the
did consider
sentencing commission
did
sentencing commission
factors
ing
permit the con-
to
issue,
not intend
and did
guidelines.
formulating the
in
consider
not
augment-
in
charges
dismissed
sideration
proof of
to this as
majority points
The
History Category.
the Criminal
ing
have in evalu-
sentencing courts
latitude
wide
sentencing decisions
sentencing
their
ating data
a
the information
over
Control
argu-
majority’s
upon. The
applying
be based
in
will
may consider
that,
developing
implies
main tool
also
sentencing
ment
commission’s
is the
did
sentencing commission
sentencing
guidelines, the
order
imposing
charges to
to,
of dismissed
use
for limit-
this
response
need
consider
process.
History
may
Cat-
sentencing courts
a
augment
defendant’s
the information
ing
U.S.S.G.
Second,
majority cites
adopted the
upon, some courts
egory.
rely
proposition
support
implication
determin-
negative
to
§ 1B1.4
doctrine
any informa-
sentencing
has
consider
commission
sentencing court
ing whether
words,' if the
background, character
In other
concerning
matter.
considered a
tion
determin-
adequately
when
con-
has
the defendant
conduct
commission
unless
permitted,
to the sen-
is
of a factor
a
the relevance
ing whether
sidered
factor, well as
prohibitеd
is
then that
tencing process,
information
of that
use
proper
circumstances,
is similar
be a
argument
shall not
of this
The
related
thrust
law.
i.e., sentencing
v. Ma-
States
United
argument,
for
first
basis
to that
(the
(D.C.Cir.1992)
guide-
son,
of infor-
F.2d 1488
wide
may select from
courts
pre-
factors
depart
of related
determining whether
consideration
lines’
mation
apprehension
mode
Finally, the
defendant’s
cludes
guidelines.
from
departure);
charges
being a
basis
suitable
considering dismissed
claims
Smith, Departure Under
also,
H.
expecta-
settled
Robert
see
Ashburn’s
not affect
does
Should
Sentencing Guidelines:
bargain agree-
Federal
plea
regard to
tions with
Aggravating Circumstance
plea
Mitigating or
majority asserts
The
ment.
Considered”
“Adequately
Deemed
guarantees
made no
bargain agreement
36 Ariz.
Implication?”,
such, Through “Negative
sentence, and as
length of the
about
(1994).
L.Rev.
letter
violate the
departure did
argument will
majority’s
agreement.
important
particularly
This doctrine
thoroughly with
more
be reviewed
now
sentencing commission
here because
of this triad
strand
showing that each
hope of
to allow
in 1992
6B1.2
U.S.S.G.
amended
unsupportable.
is weak
augment the defendant’s
sentencing courts
charges
Category based
Conduct
Relevant
Con-
Sentencing Commission
Has The
A.
It
bargain.1
pursuant
dismissed
Charges
Connec-
Dismissed
sidered
amendment,
passing
seem
Catego-
The Criminal
tion With
considered
commission
ry?
pursuant
dismissed
impact of
necessary to
not find it
did
bargain, and
§ 4A1.3
creates
majority believes
this information
considering
consideration
extend
aperture
such, the
*9
As
Category.
History
History
the Criminal
the Criminal
augmenting
charges in
§
4A1.3
on U.S.S.G.
majority’s reliance
con-
sanctions
section
that
Category because
sentencing
the
appears
by misplaced, as
contemplated
any factor
sideration
role
the
considered
have
must
then
commission
issue
The
commission.
sentencing
the
to the Criminal
in relation
charges
dismissed
sentencing commission
on whether
turns
made,
the conviction
since
been
record that
is clear from
1. It
offense;
non-groupable
for a
in this case
inadequacy
on
was based
court's
2B3.1). Non-grou-
(U.S.S.G. §
(U.S.S.G.
namely
Category
History
Criminal
of the
exempted from
specifically
pable offenses
Cate-
4A1.3(e)),
Conduсt
the Relevant
and not
§
Category.
Conduct
the Relevant
within
inclusion
lB1.3(b)).
a
such
(U.S.S.G.
could
§
Nor
gory
and,
History
by omission,
Category
pro-
has
ment
brought
plea
about did not call
hibited their combination.
for an adequate sentence. He stated:
The
seems
departed
to have
from the
B. Does Consideration
Dismissed
guidelines
Of
so that defendant’s sentence
Charges
Augmentation
In The
The
Of
would reflect the conduct charged in the
History Category
Criminal
Any
Violate
remaining eleven counts of the indictment
Law?
(counts that were dismissed in exchange
guilty
plea).
But if the court be-
'majority
The
support
further
finds
for its
lieved
punishment
that defendant’s
should
argument
§
1B1.4
U.S.S.G.
and the com-
conduct,
reflect that
why
accept
did it
mentary thereto.
provides
This section
plea bargain in
place?
the first
“any
a court
consider
information con-
cerning
background,
character and con-
Plaza-Garcia,
United States v.
914 F.2d
defendant,
duct of the
pro-
unless otherwise
(1st Cir.1990);
United States Cf.
by
§
hibited
law.” U.S.S.G. 1B1.4. Further- Greener,
(7th Cir.1992)
979 F.2d
more,
commentary
specifi-
to this section
(upholding a
rejection
district court’s
of a
cally
that,
example,
states
“[f]or
if
defеn-
[a]
plea bargain because it did not adequately
robberies,
dant commitfs] two
part
but as
reflect
actual offense con
defendant’s.
plea negotiation
a
guilty
entered a
plea to
duct).
majority, however,
The
per
is not
one,
only
the robbery that was not taken into
by
argument
suaded
that U.S.S.G.
account
provide
a
§
11(e)
6B1.2 and
prevent
Fed.R.Crim.P.
reason for sentencing
top
at the
guide-
augmentation of the Criminal History Cate
range.”
line
majority
The
believes that this
gory
charges
based on
pursuant
dismissed
section and its accompanying commentary
plea
bargain.
Instead, the majority states
explicitly permit
court to consid-
that the sentencing
permitted
court was
er
charges in augmenting
dismissed
a defen-
accept
guilty plea,
Ashburn’s
and still disa
dant’s
fact,
Category.
vow
agreed
the sentence
to in
plea
bar
§
effect of
1B1.4
U.S.S.G.
and its com- gain agreement upon a determination that
mentary
contrary
lead me to a
conclusion.
suggested
sentence did not adequately
reflect the seriousness of Ashburn’s criminal
Section 1B1.4 of
permits
the U.S.S.G.
sen-
conduct or his likelihoоd of recidivism. The
tencing courts
rely
any
information not
majority’s construction will eviscerate Rule
prohibited by
departing
law in
from the
11(e) of the Federal
Rules Criminal Proce
guidelines.
majority
The
stated that it could
dure.
statute,
find
guidelines section,
“no
or deci-
sion of this court
preclude
that would
majority
The
opinion’sreliance on the com-
district court’s consideration of dismissed mentary accompanying
U.S.S.G.
1B1.4 also
counts of an indictment
in departing up-
calls for
response.
That commentary
ward.” However,
6B1.2(a),
U.S.S.G.
speaks
com-
to how a sentencing court would be
ment.,
implies
which
that sentencing
justified
courts
in sentencing a defendant at the
only
should
accept plea agreements that ade-
upper
limits
in reli-
quately reflect the seriousness of the actual
charges
ance on
pursuant
dismissed
to a
behavior,
offense
prohibit
seems to
the con- bargain.
quotes
language
this
sideration
pursuant
to a
in footnote
opinion,
15 of its
ostensibly to
plea agreement.
language
in this sec-
demonstrate
this commentary justifies
closely
tion
tracks that of Fed.R.Crim.P.
the result
fact,
in this еase.
the precise
(cid:127)
11(e),
requires that,
if a sentencing
language of
commentary
speaks only to
accepted
plea bargain,
has
then a sentence
upper
at the
limits of
guide-
promulgated
embody
should
range.
line
instance,
For
hypothetical
disposition agreed
bargain
guideline range
months,
were 63 to 78
then
agreement. Then
Judge
Chief
Breyer
the fact
that certain
were dismissed
*10
First Circuit relied
on both U.S.S.G. 6B1.2 would justify the sentencing court to choose
11(e)
and Fed.R.Crim.P.
in
why
querying
a
a sentence
ceiling
closer to the
than the floor
guilty plea should
accepted if
agree-
be
the
appropriate
of the
guideline range. The
testimony of
in
agreement
the
bargain
plea
commentary to U.S.S.G.
the
of
command
the
significantly,
More
of its witnesses.
one
have dis-
sentencing courts
that
is
1B1.4
ac-
a defendant
when
majority
that
implies
cannot
range, but
guideline
the
within
cretion
charges in re-
certain
of
the dismissal
cepts
is
There
another.
range for
one
substitute
bargained
has not
plea, he
guilty
for his
turn
commentary to U.S.S.G.
in
nothing
the
Ad-
exposure.
prison
any
reduction
beyond the
justify а
§ 1B1.4
a determina-
requires
argument
dressing this
com-
contrary, this
On the
range.
guideline
a criminal
means
of what
tion
from
departures
that
is
mentary’s implication
of
“dismissed,” what constructions
or
charge
dismissed
range based on
guideline
the
To
reasonable.
are
“dismissed”
word
the
actually prohibited.
are
charges
first consid-
must
one
questions
these
answer
strokes,
the conse-
er,
what are
in broad
Charges
Considering Dismissed
Does
C.
a crime.
being charged with
quences of
Ex-
Reasonable
A
Violate Defendant’s
Bargaining
Plea
pectation
charged with
being
Of
persons,
most
For
Agreement?
shame, re-
many consequences:
has
crime
life-chances,
loss
morse,
a reduction
depar-
justifying
final measure
As a
difficulties.
freedom,
associated
other
and
court,
majority
by the
ture
charge dismissed
such, having a criminal
As
not contain
bargain did
plea
that the
argues
charged,
one
to the
benefits
brings several
Ashburn
lead
that would
language
any
prison.
is
avoidance
least of
not
not
would
dismissed
believe
multiple
facing a
However,
a defendant
sentencing. The rea-
him in
against
be used
charge los-
indictment,
additional
each
count
is that
urges this view
majority
son
simply
and
amounts
quality
stigmatic
es its
expectation
reasonable
defendant’s
lengthier sentence.
aof
possibility
to the
constitutionally
is
agreement
bargaining
plea
ishe
point were
is at the
aOnce
defendant
breach-
prosecution
if
that
and
protected,
little,
any,
there is
guilt,
his
poised to admit
defendant,
then
with the
agreement
es its
four
of the
knowing that two
uplift in
moral
performance
specific
may demand
charged with
has been
that he
plea
alto-
agreement
withdraw
in these
Clearly, a defendant
dropped.
being
York, 404 U.S.
v. New
gether. Santobello
that
bargain
plea
accepts a
circumstances
495, 499,
L.Ed.2d
92 S.Ct.
rea-
only one
charges for
certain
majority
dismisses
difficulty the
(1971).
To avoid
penitentiary
in the
less time
spend
son:
plea bargain
language of
parses the
charges counted
having the dismissed
not
no lan-
it “contained
find that
agreement to
sentencing.
at
against him
him to believe
have led
guage that could
as a
be used
not
counts could
dismissed
concerning a de-
argument
majority’s
plea
In the
departure.”
fоr an
basis
consequences
expectations
fendant’s
stated
prosecution
agreement,
bargain
bargain
plea
charges in
dismissing certain
charges that
prosecute
not
it would
a realistic
light of
plausible
simply not
reading, the
on this
Based
were dismissed.
aof
defen-
understanding
awareness
expectations
that Ashburn’s
majority argues
dismissing
effect
on the
perspective
dant’s
court,
it was
met since
were
Ashburn,
any other
nor
charges. Neither
employed the
prosecution,
not the
plea
guilty
agree to
defendant,
ever
would
making a
charges
reasonably, that
believe, quite
if he did
not be
being dismissed
in the
promised
Since
re-
sentencing. The
him at
against
counted
robberies
bargain agreement
coun-
urges results
sult
1992 would
July 17 and
place took
in the case
apparent
effects
terintuitive
violated
prosecution
pursued,
instance,
sentencing. For
Agent Ashburn’s
by presenting
agreement
bargain
actu-
the counts
range for
testimony concern-
Lynn Eckert’s
Deborah
an intermedi-
resulted
ally plead guilty
ma-
robberies.
ing
bank
those
he
Had
years.
six
a little under
ate
than whether
further
goes
argumеnt
jority’s
four
of all
convicted
tried
instead been
by a
forbidden
a line
crossed
prosecution
*11
counts,
upper
limit of
(1970),
and with the
majori-
confusion the
he
exposed
would have been
ty
would have
opinion
invites
its
by allowing dismissed
years. See,
been less than nine
U.S.S.G.
to creep back in at the sentencing
§ 3D1.1
seq. (relating
guideline’s
et
to the
stage, such a knowing and informed waiver is
offenses).
treatment of multiple count
nearly
How-
impossible to achieve.
ever, the
actually
imposed on Ash-
Apart from
patent
unfairness of the
bum, and
by
affirmed
majority
today, is majority’s argument, there are several nega-
months,
or
years.
result,
fifteen
tive consequences that will flow from it. The
which the
reasonable,
finds
is that
significant
most
of these is
impact
it will
by
plea
entering
bargain
agreement, Ash-
have
plea
on the
bargaining process. The
given
burn was
a sentence that was almost
plea bargain is an
component
essential
of our
long
twice as
he
gone
had
to trial and
justice
system, by which all involved
been convicted on all four counts.
benefit.
In exchange
a guilty plea,
Furthermore, upwardly depаrting
based
promises the defendant that
on the Criminal History Category and dis- will either drop certain charges or down-
missed counts is
necessary
to achieve
grade
charged.
offense
return,
objectives of the sentencing court in Ash-
pays
for whatever benefit he re-
burn’s sentence. The sentencing court de-
ceives
cooperation.
with his
By agreeing to
parted from
because it
plea
be-
bargain, the defendant waives several
lieved that Ashburn’s
Cate-
rights,
prominent
most
of which
right
is the
gory did not accurately reflect the extent of
to trial
jury.
bargains
Plea
also benefit
experience
his
with committing
society
robberies.
whole,
as a
guilty pleas
since
reduce
However, the proper way to address the
the number of cases on our overburdened
inadequacy of the sentence was not to factor
court dockets.
system
Our
jus-
of criminal
charges.
Instead,
the sen-
tice has come
depend
on defendants fore-
tencing court
have
should
pow-
exercised its
going
right
their
trial;
jury
if each
ers
11(e)
under Fed.R.Crim.P.
rejected
and
defendant,
regardless of the merits
plea bаrgain
if it felt
agreement
case,
of his
were to
right
insist
his
to a
was too lenient.
If
leniency
agree-
jury trial,
our courts would not be able to
ment did not
apparent
become
until after the
function. Studies have supported the effica-
presentence investigation,
very
cy
often
and centrality of the plea bargaining pro-
occurs in
period
between the submission
cess to
See,
our criminal courts.
Milton Heu-
of a guilty plea
sentencing,
mann,
then the
(1977)
Plea Bargaining 24-35
(setting
sentencing court should have offered Ash-
empirical
forth
plea
evidence that
bargaining
bum the opportunity to withdraw
plea.
is less a response to
pressure
case
than a
rational method for the resolution of criminal
By rejecting
plea
bargaining agree-
innocence
guilt).
ment, the sentencing court could have forced
further negotiation between Ashburn and the
It
indisputable
plea
bargain
prosecution, and
parties
could possibly
involved,
benefits all
and is vital to the main-
have
agreement
come to an
that more accu-
tenance of order in our
justice
sys-
rately refleсted the realistic sentencing possi-
tem.
the majority’s reasoning will
bilities Ashburn faced. If Ashburn
towas
make
bargaining a much more unstable
exposed to
prison
additional
time based on and haphazard process. Defendants and
charges,
“dismissed”
he should
been
their counsel will be unable to properly eval-
informed,
so
and without this knowledge he
uate
consequences
of a
bargaining
could not have knowingly
rights
waived his
agreement,
they
will never know if pleading guilty. Trial courts must ascertain
sentencing court will disregard
parties’
that a defendant’s guilty plea is
in a
compact
made
by considering charges that both the
knowing and
manner,
informed
Boykin
prosecution
agreed
defense
would not be
Alabama,
238,
395 U.S.
89 S.Ct.
23 a factor at sentencing. Obviously, when
(1969);
L.Ed.2d 274
North Carolina v. Al-
faced
decision,
with such
many
defendants
ford,
U.S.
91 S.Ct.
27 L.Ed.2d who would otherwise admit
guilt
their
*12
sentencing
in this
court
by the
met
was
more attrac-
find it
will
their
accept
trial,
case.
case at
prosecution’s
the
to test
five
depart,
the
to
decision
justifying its
Ill
speech
economy of
an
sentencing
used
court
The actu-
imagination.
to the
left much
that
depаr-
the
that
majority’s conclusion
The
by the
provided
the rationale
transcript of
al
un-
adequate is also
were
justifications
ture
one
occupies approximately
sentencing court
out-
previously
has
court
This
supportable.
pages.
typed
one-half, double-spaced,
and
a deter-
making such
for
procedure
the
lined
n The
it
that
first announced
sentencing court
Lambert, 984
States
in United
mination
that
stated
and then
depart,
to
going
was
banc).
Cir.1993) (en
Lam-
(5th
F.2d
the two
convicted of
had been
the defendant
bewill
departure
a
bert,
that
court held
this
History Cate-
counts,
Criminal
ac-
sentencing court offers
if the
affirmed
the
Then
II.
V instead
would be
gory
if said
and
departure
for its
reasons
ceptable
robberies
if the
that
sentencing
stated
court
In or-
668.
Id. at
departure is reasonable.
early 1980s”
“in
committed
the defendant
4A1.3, a sen-
depart under U.S.S.G.
to
der
account,
Criminal
Ashburn’s
taken into
were
increasing
consider
first
tencing
should
court
level VI.
increase to
Category
History
to
History Category
Criminal
defendant’s
cryptic
a
made
also
sentencing court
The
satisfactory,
level,
is not
if that
and
next
“attempted robberies”
several
to
allusion
consid-
should
subsequent level
each
then
taking into consideration.
also
that
it was
a
Also,
called
Lambert
at 661.
ered.
Id.
the de-
court felt that
Since
why
record
for the
to state
sentencing court
Category
History
current
fendant’s
by the
provided
category
criminal
aspects
these
reflect
adequately
did not
why the
and
inappropriate,
guidelines
a
that
it decided
background,
Ashburn’s
at
Id.
appropriate.
is
it chooses
category
departure” was
upward
drastic
“rather
complexities
recognizing
663.
order.
to
appropriate
setting a sentence
inherent
require
defendant,
not ...
“we do
every
require
does not
that Lambert
It is true
exer-
through a ritualistic
go
through
a ritual-
“go
district
sentencing court to
each
mechanically discusses
it
mechanically
cise which
dis-
in which
istic exercise
route
rejects en
category it
Category it
History
each Criminal
cusses
Id.
it selects.”
category
it se-
category
that
to the
rejects en route
Yet what
Id. at
lects.”
Departure
Sentencing Court’s
The
Were
a
A.
barely amounts
hеre
provided
Adequate?
what
Stripped of
obvious.
of the
Justifications
recitation
provided,
sentencing court
preamble
little
an ambitious
are
sentencing guidelines
of the
to a mention
amounted
departure
that
process
on a
impose order
attempt
activity
a
and
previous
Sentencing
defendant’s
chaotic.
was too
many felt
acts demonstrate
past
that these
conclusion
demanding process
is a
being
human
fellow
from the
depart
upwardly
it should
deeds,
that
demeanor
evaluating
requires
defen-
“likelihood
due to the
guidelines
quantification.
elude
circumstances
and
“the
seri-
crimes”
other
commit
dant will
are an effort
Nevertheless,
guidelines
These
conduct.”
past criminal
of his
ousness
equity,
sake
for the
that ideal
achieve
verbatim,
found
the ones
are, almost
phrases
it is
recognize that
guidelines
wisely, the
§ 4A1.3:
to U.S.S.G.
policy statement
go
of the factors
all
to envision
possible
when the
“is
departure
warranted
such, they
per-
As
sentence.
a criminal
into
un-
significantly
Category
extraordinary Criminal
these
where
departures
mit
seriousness
der-represents
defen-
Howev-
present.
factors
unforeseen
likelihood
history or the
dant’s
making a sham
er,
to avoid
in order
crimes,”
commit
will
degree
further
some
guidelines,
goal
noble
sen-
Essentially,
provided).
(emphasis
to be
required
articulation
phrases
exact
repeated the
tencing court
threshold
reasonable.
considered
I think
guidelines.
found
by required
reasonableness
requirement
reasonableness
ultimately
convicted on in 1984.
justifications requires more
that mere
If
re-
ease,
were the
that conviction would
cital of the same words that
*13
authorize
been
twice,
have
counted
as Ashburn’s pre-
departure.
that
If
all
required,
is
that
is
report
already gave him three crim-
any
then
explanation
departures
for
points
is
inal
for this 1984 conviction.
meaningless exercise,
goal
and a noble
of the
counting
Such double
would be improper, yet
sentencing guidelines is in jeopardy.
one cannot deduce whether the sentencing
court relied on the 1984 conviction due to the
It is
in
inherent
the exercise of reviewing
paucity of
explanations.
its
the adequacy
departure justifications
reasonable minds will
However,
differ.
There is
one other difficulty with the pro-
explanations provided by
priety
sentencing
of the reasons
asserted
the sen-
court here
reasonable,
are
virtually
tencing
then
justifying
its
depar-
nothing can be characterized as unreason-
ture. The sentencing
relied,
part,
on
'
cursory justifications
able. The
provided by
charges
the two
plea
bargain dis-
the sentencing court
missed,
in this
particu-
are
ease
and one other
unindicted
problematic
larly
when one considers the
Ashburn allegedly
de-
committed. For each of
gree of
departure.
As
majority
items,
not-
these
the sentencing court added
ed, Lambert anticipated a narrow class of
three
history points.
However, by
departure
cases where the
great
is
assessing
so
as to
three criminal history points for
require a
explanation
detailed
of the
items,
each of
reasons
these
they
being
treated as
majority
if they
then blithe-
full-fledged
were
convictions. The
ly states that
problem
here was not of
approach
with this
is that it
to
fails
magnitude
required to
distinguish
invoke the addi-
previous
between
convictions
tional
(which
Lambert scrutiny. However, Ashburn
also merit
three criminal history
given
a sentence that
points)
practically
and other events ranging from dis-
triple that which he would have
subject-
been
missed counts to
prosecution
conduct the
ed to
guidelines.
under the
Again, if
may never
have intended to be a basis for an
departure here was
sufficiently
not
marked
indictment.
It
is not clear that U.S.S.G.
justify
4A1.3(e)
careful accounting
of the
permits
reasons
ascribing the same num-
deviation,
then I fail to see what
ber of
kind
history points
to past criminal
justify
does
a Lambert
prior
elabora-
conduct as to
convictions. If this were
tion.
case,
then what would be
point
defining
prior
awhat
conviction is and basing
B. Propriety
The Grounds
For The
Criminal History
De-
Category
Of
con-
parture
victions.
only
Not
explanations
are the
provided by
IV
the sentencing court insufficient to justify a
departure of
magnitude,
such
but there are
In closing, I would like
point
out that
also difficulties with
explanations
them-
some of the
issues
this case have caused a
example,
selves. For
the sentencing cоurt
split.
circuit
The circuits
split
over
relied on the “robberies that occurred back whether
charges
dismissed
may be used to
early
1980s” in raising Ashburn’s al-
augment
the Criminal History Category.
ready augmented Criminal History Category The Second and Tenth Circuits have held
from level V to level VI.
It is assumed that
charges
See,
be so used.
“early
these
1980s” robberies
Kim,
United
(2nd
States
All would 2 of same indict- and constituted sympathetic is cause being sen- under de- ment of the nature character. pro- expressly agreement the con- tenced. overshadow seem acts fendant’s dismissed, two counts be poli- those sections, vided commentaries sideration on those convictions assume guidelines, cy statements did, express violates body judge of rules the district of this the circumvention Secondly, if a agreement. law. For create bad terms leads on dis- conviction sentencing judge assumes reasons, respectfully dissent. I these *14 “conduct counts, longer have you no missed whom, DeMOSS, Judge, with as Circuit conviction” in a criminal resulting joins, Judge, GOLDBERG, you (e). Circuit have Rather sub-part in defined dissenting: in- a multi-count under convictions additional processing would necessitate which dictment stated Goldberg has Judge in all that I join relating to multi- seq. et 3D1.1 Section under dissent, add these and comprehensive in his of addition- counts; those the effects and ple I feel so because of dissent words additional up, not show would al convictions my and col- judge, the district strongly that table, in the determina- history but criminal in error opinion, in leagues the (see example offense level” for, of “combined tion and the basis justification of in their Manu- Guidelines of the 1993 page 246 by the 1 on of, upward the quantum including case, of ). net result the In this al in this ease. judge district of com- 2 in the determination 1 and supplemen- government’s the page 8 of On the to move level would offense bined quota- brief, is a verbatim there banc tal en 27; to 25 steps up two level offense the district of transcription the tion of history cate- criminal change in the no with hearing at explanation the judge’s to be 78 II, guideline would gory of the IAs upward. read departing why he was district the text, clear it seems of circumstances: to the as on two sets conviction relied assume judge Finally, to (count three then attribute and December robbery in A. con- assumed dis- for each history points which indictment criminal 1 of the prior actual January for an viction, you missed), robbery just as would the as point structure conviction, which was the (count renders the indictment 2 of determining dismissed), and the defined In meaningless. utterly (un-indicted not re- indict), add adult conduct short, would similar “prior which agreed not to ascribed “if can be history points each in a conviction” sulting three criminal to an assigned as points been convict- of earlier number had same [Ashburn] he ” conviction, no distinction there [emphasis add- these robberies actual ed of two. ed]; between back occurred “that The robberies B. 11(e) Rules the Federal Rule Under into “if taken which early 1980’s” judge Procedure, the district crimi- push Ashburn’s would account” pro- which agreement reject a accept or category VI. past nal charges. or of counts for dismissal vides right the ma- departure, judge upward gives approving In further Rule That acceptance on Section primarily relies as to opinion jority decision “defer his to “pri- 4A1.3(e) opportunity consideration an permits been there has rejection until It is report.” not result- conduct presentence adult or similar consider to making reading such that after conviction” case ing in a criminal in this apparent judge felt district report, the an presentenee my light. off too getting defendant propriety toas doubts serious I have is to remedy then judge’s view, the district three rob- on the judge’s reliance the district de- force the agreement reject “A” above. sub-paragraph described beries plead to fendant guilty all counts of box, Pandora’s the opening of which we will indictment or stand trial and risk conviction regret. cоme to on all counts. either those alternative Furthermore, as in Subpara- indicated events, multiple count analysis under sec- graph above, B. judge district was even tion seq. 3D1.1 et would have required been cryptic more in articulating thought pro- resulting sentence, determine the and that cess “early 1980s robberies” than he analysis on the focuses combined offense lev- was as to the counts in Subpara- described el and not history. Instead, graph A. simply He said “If taken into judge district decided upwardly depart on account”, these 1980s robberies push the basis of “assumptions,” which I find the criminal history category past Category clearly erroneous, and pro- extent that gave VI. He no indication number of duces a sentence which is double what would robberies he “took into account” nor did he been the sentence had the indicate points per robbery he allocated to,all pleaded guilty fact four as he did in describing the other robberies in counts. Subparagraph A. above. He no at- made *15 These same equally criticisms are applica- tempt to any special articulate circumstances ble to the judge’s district use of the “robber- about “early 1980s robberies” per- ies back in early 1980s” described suaded him to adjustment. make an So, Subparagraph B. justification above simply by stating he took early these taking Ashburn’s “past Cate- account, robberies into judge district de- gory VI.” As in the prosecution, instant parted upward further from the guideline pled guilty in 1984 to one count of a (O.L. of 100—125 V) months 25—C.H. multi-count charging indictment various (O.L. to 151—188 VI) months 29—C.H. events of bank and the remaining reach the ultimate sentence of 180 months. counts were So, dismissed. only do we opinion rationalizes approval its have dismissed counts of the current indict- judge’s district articulation of his rea- ment but also dismissed counts prior of a by sons portions citing of Lambert abjuring indictment, which was the prior source of a “ritualistic exercises” by pointing out conviction, being used as the basis for deter- that on a percentage upward basis the depar- “prior mination of adult similar conduct.” ture in this case is not that different from the Given proclivity prosecutors to file upward departure approved in Lambert. multi-count indictments and the frequency But in the real terms of years months and with which some of those get dis- prison, served in the departure in this missed pursuant bargains, there is a case from an initial range of 63—78 veritable “mother lode” of upward adjust- (5-6% years) months to a final sentence of ments awaiting to be mined out of Section (15 years) months is very kind of 4A1.3(e) if the judge’s district application is departure we had in mind when we stated in correct. The majority seeks to bless its af- Lambert: firmance the district judge’s interpretation “In very narrow cases, class of we this can case stating that it is joining the conceive that the district Tenth court’s Circuit and the Second Circuit in hold- will that, be so great ing order prior survive criminal conduct related to review, our it will need explain dismiss care- of an indictment be used n detail, why adjustments lesser to justify ful That bless- defendant’s ing is misplaced in score would this ease for nothing in be inadequate.” (Tenth Page Zamarripa Circuit) (Second nor Kim Circuit) dealt with dismissed counts of I respectfully dissent from the conclusion indictments in the history; and our judge district satisfied Lambert. court therefore is making completely new law as to the “robberies in early 1980s” in I case. respectfully suggest such new law not contemplated by guide- lines and will 4A1.3(e) turn Section into a