*1 apart- one-bedroom and two-bedroom III. CONCLUSION Third, ment. Brittain volunteered discour- above, For the reasons stated we reverse aging which makes it under- information judgment of the district court and re- Mayeaux did not standable that wish to proceedings mand for further consistent apartment3. view a These two-bedroom opinion. with this representations qualify steps as “other discourage to families with children [taken] living housing.” in its
from HUD Memo- prima 4. A facie case of dis-
randum at clearly presented,
crimination was and thus Appellees provide to burden shifts
non-discriminatory explanation for the re-
striction. America, Appellee, UNITED STATES of only explanation by Appel- offered v. availability parking. limited lees is the find, law, HORN, Appellant. as a matter of that no reason- Steven VAN accept proffered able fact-finder could this No. 91-3854. justification anything pre- other than a Appeals, Mayeaux’s year daughter five old text. Eighth Circuit. possibly availability could not affect the parking spaces. parking may While indeed May Submitted 1992. Georgetown, premium be at a at the occu- Decided Oct. 1992. pancy restriction is not a reasonable means dealing problem. Lepore, with the See slip op. nothing 26-28. There is at prevent
restriction to a resident of a one- apartment having
bedroom from more than car,
one and the restriction does not take
into account the fact that infants will not
require parking spaces. Appellees have attempted any
never alternative method of
allocating parking. occupancy
We therefore find that imposed by Georgetown
restrictions violate 3604(a)-(d) Housing
sections of the Fair conclusion,
Act. Based on this we remand
this matter to the and direct enjoin Georgetown
that the district court discriminating on the basis of familial
status, and that determine the affirma- may steps necessary notify
tive be public Georgetown operat- will be comports
ed in a manner that with the Fair remand,
Housing Act. On the district ap- should also determine
propriate remedy to Mayeaux. be awarded Furthermore, Appellees Georgetown. allegation admitted that occu- While there is no pancy policies adopted response of the two-bedroom and three-bedroom these were apartments Act, persons. is Housing restricted to two As a 1989 amendments to the Fair these policy, family policies prevent result majority of this no which consisted of families with child, parents single parent of two living Georgetown, and a or a children from and there- any apartment and two children could rent fore violate the Act.
1181 BEAM, Judge. Circuit appeals the Steven Van Horn sentence imposed by the United States District for the District of Nebraska. He 842(i) was convicted under 18 and U.S.C. §§ 844(a) proscribe any person which who has previously been committed to a mental in- shipping receiving any stitution from or in explosive material interstate commerce. plea agreement, Pursuant to a Van Horn in- pleaded nolo contendere to a one-count guilty dictment and was found the dis- government urged trict court. The the dis- depart upward trict court to from the sen- tencing range prescribed by the United (“guide- Guidelines lines”). depart up- The court did in fact forty-one to sentence Van Horn to ward imprisonment. Horn months claims breached the agreement by recommending departure guideline range. For reasons, following we vacate sen- resentencing tence and remand for before judge. another
I. BACKGROUND
charged by indictment
Van Horn was
1990,
one count of
July
dated
with
842(i)
844(a).
and
violating 18 U.S.C. §§
Horn,
11, 1991, Van
who was
On March
se,
charge
pro
pleaded guilty to the
then
a sentenc-
and the district court scheduled
ing date for June
presen-
prepared
office
(“PSR”)
5, 1991. In
report
April
tence
on
PSR,
calculated
the offense level was
by adding a ten-level enhancement to
six, pursuant to the
base offense level of
effect,
guidelines
then
in
U.S.S.G.
(Nov.1991)
2K1.3(b)(4)
(App. C amend-
§
person
373),
Horn was a
because Van
Vanderslice, Lincoln, Neb., ar-
C.
John
trafficking
explosives
prohibited appellant.
gued, for
842(i),having previously
under 18 U.S.C. §
A
mental institution.
been committed to a
Neb.,
Everett, Lincoln,
argued,
L.
Alan
for obstruction
two-level enhancement
appellee.
proba-
also added.
justice was
a total offense level
tion office calculated
McMILLIAN, JOHN R. GIBSON
Before
category
history
BEAM,
Judges.
eighteen
and a criminal
Circuit
and
sentencing hearing
At the
on December
guidelines, this results
I.1
Under
10, 1991,
twenty-seven
substantially
the district court
sentencing range between
adopted
sentencing range
calculations
months. The PSR also
thirty-three
PSR,
might
in the
but sustained Van Horn’s con-
factors that
aggravating
noted
objection to the ten-level en-
upward departure from the
stitutional
warranted
*3
sentencing,
having previously
for
com-
Before
how- hancement
been
guideline range.
Transcript
mitted to a mental institution.
ever,
permitted Van Horn to
the court
Sentencing
guilty plea.
of
at 11-12. The court then
his
withdraw
by
recalculated the total offense level
add-
Subsequently, Van Horn entered into a
ing to the
of six a
base
level
two-
government
the
under
plea agreement with
jus-
enhancement for
of
level
obstruction
plead
nolo conten-
Van Horn was
which
for
tice and a four-level enhancement
con-
charge contained in the indict-
dere to the
involving
duct
a false or fictitious state-
attorney set out the
ment.
Horn’s
Van
2K1.8(b)(l).
ment under U.S.S.G.
Id. at
§
agreement in a
plea
the
letter to
terms of
14-17.
the court arrived at a total
5,
September
dated
1991.
prosecutor
the
offense level of twelve and criminal histo-
provides
pertinent
plea agreement
ry category
guidelines,
of I. Under the
part:
imprison-
results in an
this combination
exchange for Mr. Van Horn’s
2.
In
range
ten to
of
sixteen months.
agree
will
not to
plea, the Government
losing
argument
After
on the consti-
upward departure from the
seek an
Of-
enhancement,
tutionality of the ten-level
ultimately calculat-
fense Level which is
government urged
upward depar-
the
ed,
the
pursuant
Sen-
guideline range accepted by
ture from the
Guidelines,
tencing
on Mr. Van Horn’s
government
the court. The
claimed that
by
States Probation Of-
case
the United
plea agreement
the
did not bar its sentenc-
Furthermore, the Government will
fice.
recommendation,
ing
stating:
to the Court that Mr.
not recommend
Honor,
any specific
plea agreement
Horn be sentenced to
Your
the
in this
range
the
ease
I
of months within
al-
limits the comments
can make at
number
specific
sentencing.
the
Level
lowed under
Offense
this case
(e.g.,
upward departure
Mr. Van Horn’s case
not to ask for
calculated on
guideline range
by
will not recommend to
the Government
as calculated
probation
Mr. Van Horn
sen-
the
the Court that
be
office.
think that be-
“upper
range
the
tenced at the
end” of
cause the Court has determined to use or
permitted
guideline range
under the Guide-
least start
from a
months
lines).
significantly
below that
the
calculated
office,
probation
that it’s fair for me to
Brief,
Appellee’s
Addendum 3. After
urge
departure
from this lower
findings
making appropriate
under Rule 11
sentencing guideline range, and I do so.
Rules of Criminal Proce-
the Federal
dure,
accepted
plea
Transcript
Sentencing
the
on
at 32-33.2 Van
the
hearing
objected
September
government’s argu-
and set a
date Horn
to the
sentencing
urging upward departure, claiming
for
and for consideration of the ment
plea agreement.
plea agreement,
it violated the
but
parties,
According
original
to the briefs filed
office revised its
calculation
original
report erroneously
presentence
calcu-
of the offense level to omit the four-level en-
twenty-two by
level of
includ-
lated an offense
ing
Report
hancement. See Presentence
23;
at 4
15-
¶¶
enhancement under
both the ten-level
Sentencing
Transcript of
at 16-17.
2K1.3(b)(4)
four-level
U.S.S.G.
and a
enhance-
§
2K1.3(b)(l). Appellant's
§
ment under U.S.S.G.
appeal
pages twenty through
2. We note on
4; Appellee’s
Brief at
guidelines,
Brief at 1. Under the
thirty-nine
Transcript
of the
pur-
enhancement
if more than one
mistakenly
pages twenty
been
substituted for
conduct,
2K1.3(b) applies
suant to section
only
through thirty-seven
of the
of Plea
greater
enhancement
is to be used in
12, 1991).
(September
We will cite to the cor-
calculating the total offense level. The record is
pagination.
rect
point,
apparently
unclear on the
but
at some
presentence report
time
was
before the
filed
“
imposition
only
his
at the
‘initial
of sentence
he did not wish to withdraw
stated that
agreement]
[providing that
shall not
accepted
plea
then
plea. The court
pro-
bind the United States at
guilty, and
found Van Horn
agreement,
”
ceeding.’
(quoting McCray’s
Id. at 305
impris-
forty-one months
him to
sentenced
Agreement).
gov-
Plea
We found that the
onment,
ten-
upward departure from the
agreement
ernment breached
at the
range. After
tó sixteen-month
sentencing hearing by opposing McCray’s
sentence, Van Horn
passed
the court
request
early parole
status under 18
and asked
moved to withdraw
4205(b)(1).
rejected
hyper-
U.S.C. §
The dis-
to set aside the conviction.
government’s argument
technical the
appeal
This
trict court denied the motion.
complied
with the
because it
followed.
*4
after
district
remained
until
the
silent
II. DISCUSSION
prison sentence, commenting
imposed a
accepted by the court
plea
If a
only on the manner in which it should be
significant degree
prom
on a
any
“rests in
government
executed. The distinction the
agreement
prosecutor,
the
so that
ise or
seeks to make here is as thin as the distinc-
part
to be
of the inducement
it can be said
in McCray.
tion asserted
consideration,
promise
such
must be ful
or
case,
In
ultimate
this
the
calculation
York,
v. New
404 U.S.
filled.” Santobello
the offense level was made at the sentenc-
495, 499,
257, 262,
427
92
30 L.Ed.2d
S.Ct.
10, 1991,
ing hearing on December
but the
(1971).
govern
Horn claims that the
Van
could not have
at a
district court
arrived
promise by urging
its
the dis
broke
total offense level
twelve without the
depart upward
the
trict court
computations of the
office. Ev-
guideline range and that he is therefore
ery component of the total offense level
differ
entitled to be resentenced before a
accepted by the district court was recom-
judge.3
ent
by
probation office in the
mended
the
government maintains that
it
suggest
PSR.4 It is circuitous to
that be-
plea
plain
not
the
terms of the
in
did
violate
cause one of the recommendations
the
court,
by
the district court did
rejected
because
PSR was
the district
the
any
in
accept
not
the offense level recommenda ultimate
level was calculated
government argues way
“by
in
other than
the United States Pro-
tion
the PSR.
Accordingly,
accepted by bation Office.”
we find that
that because the offense level
government
the
violated the terms of the
the offense
the district court is lower than
plea agreement
urged
the district
PSR,
when
in the
the level
level recommended
depart upward
court to
“ultimately
accepted by the court was not
range
sentencing.
in
by
calculated ...
the States Probation Of
reasoning hypertechni
find this
fice.” We
its
government
the
breached
Since
and unreasonable.
cal
promise
upward
de
not to recommend
rejected
reasoning
resentencing.
a similar line of
in parture,
We
we must remand for
(8th
government
McCray,
1184
However,
stated,
preme
Appellee’s
emphasize
Brief at 8.
under
“[w]e
Santobello, the fact that the district court
question
this is
no sense to
the fairness
gov-
may not have been influenced
sentencing judge;
of the
the fault here
is immaterial. 404
ernment’s comments
prosecutor,
rests on the
not on the sentenc-
262-63,
at
guidelines nor does he contend that dissenting. any improper district court relied on fac making depart tors determination to respectfully dissent. *5 upward sentencing government agreed The that it not would range. upward departure seek an from the offense We find that the district court relied on level calculated under the Guidelines appropriate entirely support factors to United States Probation Office. While the departure: probation office’s first calculation of 41-51 explosive device used in the commis- months in error was and later amended to capable sion of this offense was one months, 27-33 the district court sustained a seriously injuring killing and one or more objection increases, defense to one of the persons. pipe It other was bomb. It in adjusted the result of which was an endangered people. fact It did not guideline range level of with a of 10-16 injure anyone, endangered nor kill but point, months. At that the offense level Mr. them. Van Horn also wrote threat- was not that calculated letters, two, ening perhaps at least three office, and this was what the United States threatening or more. Those letters as Attorney had was the condition for acts well as that are documented of Mr. upward depar- not to seek an by way Van Horn of harassment and— ture. well, harassment of Jane Van Horn and agreements in Santobello and threatening letters to her as well as to similar, McCray were if the defendant Andy suggest rage Allen in Mr. Van pleaded guilty to a lesser-included offense Horn that has to be taken into account in in Santobello or to one count in passing McCray, of a sentence. prosecutor would make no recommen- at 35. From the simple, easily dation. These were under- record, appears that Van Horn is a threat agreements stood that were breached. The society, particular to his ex-wife and agreement in this case complex was a more boyfriend, her may pose and that he a risk one and upon was conditioned the calcula- of harm everyone connected with this tions of the United States Probation office. case. the district court could easily agree I hypertechnical cannot that it was find history category that the criminal did say and unreasonable to that there was no not adequately reflect the seriousness of agreement. breach of this past criminal conduct or the likelihood that he will commit other crimes. I would affirm imposed. the sentence circumstances,
Under these a sen must add that under all of the circum- tence of forty-one patent at least months is stances in this case and the serious likeli- ly reasonable justified. killing and As persons the Su- hood of one or more with
H85 most bomb, departure was pipe restrained. RESEARCH
SENIORITY
GROUP, Appellant,
v. CORPORATION; MOTOR
CHRYSLER Union, Automo
International United Imple Aerospace Agricultural &
bile America-UAW;
ment Workers Automobile, Agri Aerospace & Implement of Amer Workers
cultural
ica-U.S.A., Appellees. Local 92-1160.
No. Appeals,
United States Court
Eighth Circuit. *6 Sept.
Submitted 9, 1992.
Decided Oct.