UNITED STATES of America, Appellant, v. Rogelio LARA, Carlos Morales, Francisco Delgado, Defendants, Carlos Morales, Defendant-Appellee.
No. 185, Docket 89-1210
United States Court of Appeals, Second Circuit
Decided May 30, 1990
905 F.2d 599
Because the Mehtas cannot establish that the procedures about which they complain relate to the deprivation of the right they assert, their procedural due process claim fails.
II.
The district court held that the questions whether Futura had an easement over the driveway and, if so, the scope, were not “ripe” for adjudication in federal court. Mehta, 720 F.Supp. at 334 n. 13. The district court‘s ripeness discussion was somewhat confusing; the court, in finding that the deed from Model Homes gave Futura an express easement with no limits, id. at 332 and n. 11, seemed to have addressed the very questions it subsequently purported to dismiss as unripe. We agree with the district court‘s conclusion that the question of whether the easement has been overburdened should not be addressed by a federal court, but we do not find “ripeness” to be the proper basis for this conclusion.
Since we have found that even if there has been a deprivation of the Mehtas’ property rights, the Padavan Law is not the cause, we have disposed of the Mehtas’ federal claims without reaching the state law easement question. The state law “property” question5 was not presented to the district court independently as through a pendent or ancillary claim. Rather, it was simply presented as an issue that potentially had to be decided as a necessary antecedent to the decision of the federal question whether the Mehtas had received “due process of law.” In light of our disposition, the question whether the easement has been overburdened presents a pure question of state law which will never be ripe for adjudication in federal court.6 We do not address the issue simply because it is not necessary to the disposition of this case on appeal. Because it was also unnecessary for the district court to decide the question, we vacate the portion of the district court opinion addressing the nature and scope of the easement. The Mehtas have instituted trespass proceedings in state court. Their trespass claim should be decided there uncluttered by unnecessary determinations made by the federal courts.
The judgment of the district court is affirmed in part and vacated in part.
Argued Oct. 11, 1989.
David C. James, Asst. U.S. Atty. (Andrew J. Maloney, U.S. Atty., Matthew E. Fishbein, Asst. U.S. Atty., E.D.N.Y., Brooklyn, N.Y., of counsel), for appellant.
Bennett M. Epstein (Lawrence M. Herrmann, Epstein & Kirshuer, New York City, of counsel), for defendant-appellee.
CARDAMONE, Circuit Judge:
The government appeals from a judgment of the United States District Court for the Eastern District of New York (Glasser, J.) entered on April 11, 1989, resentencing appellee Carlos Morales to a term which downwardly departed from the Sentencing Guidelines range pursuant to
I BACKGROUND
The facts of this case are straightforward. Defendant-appellee Morales was found guilty at a non-jury trial of conspiracy to possess and possession of cocaine with intent to distribute in violation of
At resentencing defense counsel sought, pursuant to
The government argued that these circumstances—assuming the alleged incident actually occurred—were not a valid basis for a downward departure under part H of chapter 5 of the Guidelines Manual. In addition, it contended that Morales could find relief from possible prison victimization through administrative remedies or a habeas petition. The sentencing court rejected these arguments and downwardly departed under
Although this defendant is chronologically 22 years old, he looks 16. Not only does he look 16 but he couldn‘t add to very much what his attorney said. He looks 16. The presentence report reflects an admitted bisexuality.
This defendant is, and I knew it at the time that I sentenced him, peculiarly vulnerable and were it not for the mandatory minimum sentence which Congress required me to impose, I wouldn‘t have imposed that at the time.
[The guidelines range would result in] a sentence which is unduly severe relative to most other defendants in this Court who do not have the vulnerability, the appearance, the sexual orientation that this defendant presents.
[The guidelines sentence] I would regard as being nothing less than draconian, and ... I‘m familiar with adminis-
trative procedures and writs of habeas corpus.
They would provide this defendant with little solace.
It is from this sentence that the government appeals. We affirm.
II DISCUSSION
Congress promulgated the Sentencing Guidelines to avoid “unwarranted sentencing disparities among defendants.”
The Commission did not provide a comprehensive list of those factors a sentencing judge should consider in departing from the applicable Guidelines’ range, listing instead only a few specific factors, see, e.g.,
The government has raised several arguments in urging reversal of the sentence. It contends that extreme vulnerability of criminal defendants is not a factor permitting departure under
Before discussing these arguments, we address as a preliminary matter the government‘s assertion that the language “of a kind, or to a degree” in
A. Appellate Review
In reviewing district court decisions under the Guidelines, we apply de novo review to decisions on issues of law and the clearly erroneous standard to findings of fact. See United States v. Stroud, 893 F.2d 504, 506-07 (2d Cir.1990); cf. United States v. Irabor, 894 F.2d 554, 555 (2d Cir.1990). We review de novo the district court‘s determination that extreme vulnerability of criminal defendants was not considered by the Sentencing Commission “of a kind, or to a degree” as was found here. See United States v. Summers, 893 F.2d 63, 66 (4th Cir.1990); United States v. Aguilar-Pena, 887 F.2d 347, 350 (1st Cir.1989); United States v. Uca, 867 F.2d 783, 786 (3d Cir.1989). The dissent asserts that the Commission considered the propensity of criminal defendants to physical attack in prison when it formulated the Guidelines. Although we agree with that assertion as a general proposition, it is plain that the Commission did not consider vulnerability to the extent revealed in this record—where the only means for prison officials to protect Morales was to place him in solitary confinement. Hence, the peculiar vulnerability
Further, we review the district court‘s factual determination that such extreme vulnerability was present under the clearly erroneous standard of
Because extreme vulnerability of a criminal defendant is a proper ground for departure under
B. § 5H1 Factors
The government first asserts that the district court relied upon the factors of age, mental and emotional condition, and physical condition that the Commission explicitly designated as “ordinarily” not relevant in imposing sentence. See
To the extent that the district court relied upon the defendant‘s physical, mental and emotional condition in finding him particularly vulnerable to victimization, it adhered to the Commission‘s admonition that these factors “are not ordinarily relevant in determining whether a sentence should be outside the guidelines.”
Hence, to the extent the § 5H1 factors of physical, mental and emotional condition were relied upon, such reliance was justified by the extraordinary situation faced by Morales. Cf. United States v. Gonzalez, No. S 88 Cr. 559, 1989 WL 86021 (S.D.N.Y. July 27, 1989), slip op. at 11 (“the qualifying adverb ‘ordinarily’ implies that family ties in some circumstances may be considered in a downward adjustment“); United States v. Hon, No. 88 Cr. 0052, 1989 WL 59613 (S.D.N.Y. May 31, 1989) slip op. at 4-5 (considering that the defendant “is the mother of a young child ... and [has] a close-knit extended family“).
The cases relied upon by the government are inapposite. In United States v. Burch, 873 F.2d 765 (5th Cir.1989), the district court upwardly departed from the guideline range because the defendant was highly educated with numerous opportunities for economic advancement, yet engaged in criminal acts. The Fifth Circuit noted that the Commission designated the defendant‘s education and socio-economic status as ordinarily irrelevant at sentencing and that the court‘s reliance upon these factors without more was an unreasonable ground
The government cites further to United States v. Sailes, 872 F.2d 735 (6th Cir. 1989), which it interprets as affirming the district court‘s denial of the defendant‘s request to downwardly depart based upon the needs of the defendant‘s minor children who required parental guidance. There the district court had considered the impact of the removal of the defendant from her minor children and determined that “the proper development of [the defendant‘s] younger children might be facilitated by the children‘s removal from her direct influence for a time.” Id. at 739. Reviewing this decision in light of
C. Philosophy Behind the Guidelines
The government next urges that the downward departure runs contrary to the sentencing philosophy Congress sought to effectuate through the Sentencing Guidelines. It claims that the Guidelines were based upon the philosophy that the punishment should fit the crime, not the offender, and that the sentencing judge should consider only those characteristics of the defendant that are relevant to the crime committed. The government also contends that the court‘s consideration of the potential for victimization reflects a rehabilitative model of sentencing rejected by Congress when it enacted the Guidelines.
These assertions misread the Guidelines’ philosophy. The legislative history reflects that it was not Congress’ aim to straitjacket a sentencing court, compelling it to impose sentences like a robot inside a Guidelines’ glass bubble, and preventing it from exercising discretion, flexibility or independent judgment.
The Committee does not intend that the guidelines be imposed in a mechanistic fashion. It believes that the sentencing judge has an obligation to consider all the relevant factors in a case and to impose a sentence outside the guidelines in an appropriate case. The purpose of the sentencing guidelines is to provide a structure for evaluating the fairness and appropriateness of the sentence for an individual offender, not to eliminate the thoughtful imposition of individualized sentences.
Again, the government incorrectly asserts that the court is limited to consideration of characteristics of the defendant that are directly related to the crime committed. In support of this proposition it refers to a portion of the legislative history interpreting
D. Administrative Remedies
The final argument is that the court erred in lowering Morales’ sentence and not requiring him first to exhaust administrative remedies provided by the Bureau of Prisons. See
III CONCLUSION
The district court did not abuse its discretion in downwardly departing from the Guidelines’ range pursuant to
Judgment affirmed.
METZNER, Senior District Judge (dissenting):
I must disagree with my colleagues’ views in this case. In my opinion, the sentence imposed by the court below cannot be sustained by the provisions of
The defendant was found guilty of having supplied seven kilograms of 97 per cent pure cocaine to government agents. At the time of sentence the court observed that the evidence against the defendant was overwhelming, that the defendant had committed perjury when he testified at the trial, and that the defendant was still not admitting that he had done something wrong.
When the defendant first appeared for sentence, his counsel stated that he had “grave fears, based on [defendant‘s] appearance, his way of being, his generosity, his openness and some factors that were mentioned in the presentence report that he will be victimized in a federal prison.” The factors referred to apparently relate to the defendant‘s homosexuality.
The Guidelines’ range for the crime committed by the defendant was 121-1511 months, or 10 to 12-1/2 years. However, because the court had previously declared the Guidelines unconstitutional, it imposed only the mandatory minimum sentence of five years.
After the constitutionality of the Guidelines was upheld, the defendant was remanded for resentencing. At that time his counsel requested a downward departure from the Guidelines’ range based on Section 3553(b). He urged “that in this particular case, we have someone who is a delicate looking young man, someone who for whatever reason has the mannerisms that he has.” (Emphasis supplied.)
The court stated that while the defendant was 22 years old, he looked 16, and that “[t]his defendant is, and I knew it at the time that I sentenced him, peculiarly vulnerable and were it not for the mandatory minimum sentence which Congress required me to impose, I wouldn‘t have imposed that at the time.” The court went on to say that “nor do I have any hesitation in modifying those Guidelines downward” because the sentence required by the Guidelines was “nothing less than draconian.”
When the court used the term “peculiarly vulnerable,” I must assume that it was referring to vulnerability stemming from defendant‘s mannerisms which reflected his homosexuality. The order appealed from states that the sentence imposed pursuant to the Guidelines is a downward departure “because of the defendant‘s vulnerable nature and his admitted bisexuality.”
I
The district court did not decide the question of whether the Commission adequately took into consideration the factor of “peculiar vulnerability” in formulating the Guidelines, the resolution of which presents an issue of law.
I disagree with the majority‘s conclusion that the factors involved here were not considered by the Commission. The majority agrees that vulnerability was considered, but not in the form described by the majority, for the first time, as “extreme vulnerability.” The majority relies on the fact that Morales, between sentences, was placed in solitary confinement for his protection. This fact is irrelevant to determining the issue of law. What is held today will be applicable to the imposition of an original sentence.
The statute creating the Commission provides that the Commission was to:
“provide certainty and fairness in meeting the purposes of sentencing, avoiding unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar
criminal conduct while maintaining sufficient flexibility to permit individualized sentences when warranted by mitigating or aggravating factors not taken into account in the establishment of general sentencing practices.”
With the statutory directives in mind, it is apparent that the Commission, in formulating the Guidelines, adequately considered the factor of a defendant being vulnerable to physical attack in prison because of his mannerisms and appearance convey his sexual orientation.
The statute directs that in determining whether the Commission adequately took a factor into consideration, “the court shall consider only the sentencing guidelines, policy statements, and official commentary of the Sentencing Commission.”
“In exercising our review function on the question whether the Commission adequately took certain factors into consideration a[n] [appellate] court should respect the overriding congressional purpose of reducing sentence disparity and achieving general uniformity of treatment.”
See also United States v. Williams, 891 F.2d 962, 964 (1st Cir.1989).
The members of the Commission are experienced individuals who know of the existence and the extent of homosexuality. A male homosexual is not an unusual person. A male homosexual who, by outward mannerisms, indicates his homosexuality, is not an unusual person. Different, perhaps, but not unusual. The Commission, charged with removing unwarranted disparity in sentencing, could not have overlooked a not unusual set of factors in setting norms for sentencing.
Furthermore, the Commission was directed by Congress to consider the “nature” and “capacity” of correctional facilities in formulating the Guidelines.
II
Even assuming that the Sentencing Commission has not considered the factor of vulnerability because of physical mannerisms, this court must determine whether this factor is sufficiently unusual to warrant departure. This, too, presents a question of law with plenary review. United States v. Hays, 899 F.2d 515 (6th Cir.1990); United States v. Lang, 898 F.2d 1378 (8th Cir.1990); United States v. White, 893 F.2d 276, 278 (10th Cir.1990); United States v. Diaz-Villafane, 874 F.2d 43, 49 (1st Cir.1989).
It is agreed that vulnerability, although not expressly mentioned by the Commission as a factor, was considered by the Commission. The Commission considered physical condition,
The Commission, in a policy statement regarding mental and emotional conditions, also found that these conditions are not ordinarily relevant in determining whether departure should be granted.
Furthermore,
The floor debates relating to section 3553(b) make clear that a court‘s departure power was to be highly circumscribed:
“Adherence to the guidelines is therefore properly required under the law except in those rare and particularly unusual circumstances in which the court concludes that there is present in the case an aggravating or mitigating circumstance of a kind or to a degree not included in the guidelines, and that the presence of this circumstance should result in a sentence different from that described.”
133 Cong.Rec. S16647 (daily ed. Nov. 20, 1987) (statement of Senator Hatch) (emphasis supplied).
The Commission has said in a policy statement that while there may be departures on grounds other than those stated in the Guidelines or outside suggested levels, “[i]n its view, however, such cases will be highly unusual.”
We do not have here a highly unusual circumstance. Persons who look young and whose mannerisms may indicate homosexuality are not unusual persons. Physical attack in prison is not an unusual situation. The incarceration of such a person does not create an unusual case. The combination of these factors does not create an atypical case. United States v. Rosen, 896 F.2d 789, 792 (3d Cir.1990).
In short, physical mannerisms causing physical attack in prison do not, as a matter of law, present a highly unusual circumstance permitting departure from the Guidelines.
III
If the sole question in this case is the reasonableness of the departure from the Guidelines, the court below abused its discretion even under the standards in this circuit of “wide discretion,” United States v. Palta, 880 F.2d 636, 639 (2d Cir.1989), and “sensible flexibility,” United States v. Correa-Vargas, 860 F.2d 35, 40 (2d Cir.1988).
One of the primary motivating factors in the creation of the Sentencing Commission and the adoption of the Guidelines was to create, to the maximum extent possible, uniformity in sentencing.
The Guidelines are addressed mainly to the crime committed and conduct of the defendant relevant to the commission of the crime. They give small value to the individual characteristics of a defendant, although departure in this area is recognized. The Commission has stated in the introduction to the Guidelines that “[w]hile Chapter 5, Part K lists factors that the
Many judges are unhappy with the Guidelines, for one reason or another. That unhappiness clearly comes through in the views of the court below. However, until Congress changes the law, which is its province, we must proceed within the reasonable parameters of the statute and the Guidelines. See United States v. Aguilar-Pena, 887 F.2d 347, 353 (1st Cir.1989) (“Judicial dissatisfaction alone, no matter how steeped in real-world wisdom, cannot be enough to trigger departures, lest the entire system crumble.“); United States v. Lopez, 875 F.2d 1124, 1126-27 (5th Cir.1989) (disagreement with the Guidelines does not provide a reasonable basis for departure).
We are told in the floor debate that departure should be made only in the atypical, unusual case. 133 Cong.Rec. S16647 (daily ed. Nov. 20, 1987) (statement of Senator Hatch). The Senate Report on the original bill defines departure as the rare form of a circumstance which has not been considered by the Commission, or the usual form which has been considered but is present in a particularly extreme form. Legislative History at 3261-62. Homosexuality and physical mannerisms creating vulnerability are not circumstances of a rare form, nor an extreme form.
The introduction to the Guidelines Manual at 1.6 states: “When a court finds an atypical case, one to which a particular guideline linguistically applies, but where conduct significantly differs from the norm, the court may consider whether a departure is warranted.” The Commission went on to say that it has adopted this departure policy because of “the difficulty of foreseeing and capturing a single set of guidelines that encompasses the vast range of human conduct potentially relevant to a sentencing decision.” Id. In both of these statements, the Commission refers to “conduct,” which obviously means the conduct of the defendant in relation to the commission of the crime. As discussed above, this defendant‘s conduct does not significantly differ from the norm, either with respect to the crime committed, or as a characteristic of the individual.
The Commission concluded by saying that it “believes that despite the courts’ legal freedom to depart from the guidelines, they will not do so very often. This is because the guidelines, offense by offense, seek to take account of those factors that the Commission‘s sentencing data indicate make a significant difference in sentencing at the present time.” Id. at 1.7, p.s.
The case law has followed these directives in limiting the power of the court to depart. In United States v. Williams, 891 F.2d 962 (1st Cir.1989), a case involving downward departure, the court said at 964: “To implement the guidelines properly ... courts must remember the importance which Congress, and the Commission, attached to ensuring that like situations are treated alike.”
The court went on to say at 967:
“So long as we are unready to consign ‘the oft-stated importance of eliminating disparity in sentencing’ to the scrap heap, then departures must be bottomed on meaningful atypicality; in other words, the circumstances triggering a departure must be truly ‘unusual.’ ”
Similar views are found in United States v. Van Dyke, 895 F.2d 984, 987 (4th Cir.1990); United States v. Bolden, 889 F.2d 1336, 1340-41 (4th Cir.1989); United States v. Uca, 867 F.2d at 787.
Drug trafficking is one of the most serious crimes facing us. The defendant is not a steerer-addict seeking to support his habit by being involved in the sale of several glassine envelopes. Rather, he is an intelligent young man, with no indication of being a drug user, who was involved in the sale of 7 kilos of 97 per cent pure cocaine.
Through experience, we have learned that the usual glassine envelope contains 1.5 to 2.5 grains and costs a minimum of $5. If we take an average of two grains per sale, the 7 kilograms of cocaine would end up in 53,900 glassine envelopes worth a
As the result of today‘s decision, this defendant will sit in cell A serving five years’ incarceration, while next door in cell B will be an inmate, who may even be homosexual without outward manifestation of his sexual orientation, convicted of the same crime, who must look at the four walls around him for five additional years under the minimum Guideline sentence because he lacks greater vulnerability to attack flowing from physical mannerisms. This result cannot be justified by any reasonable interpretation of the Guidelines or the policies behind them.
The ruling in this case creates a class of defendants who, by reason of their mannerisms and appearance, will receive favored treatment regardless of the nature of the crime committed.
If there is a problem in prisons with the protection of criminals from physical attack, it should not be dealt with by imposing a lighter sentence on a “vulnerable” person. It should be corrected by better prison administration. Failure to do so would result in liability for damages under
In this case the sentence cannot be sustained under either a “wide discretion” or “sensible flexibility” power in the sentencing judge.
The judgment should be reversed and the case remanded for resentencing in accordance with the views expressed here and in the Guidelines.