*1 HH lеg mus- weakness definite had a Maher engage ability to his restricted which cles strength had normal activity, but heavy noted doctor extremities. upper
of the have difficul- would although claimant fast, inde- running he was walking or inty living. daily activities in his
pendent Marcus, Dr. Moreover, July of Maher reported
treating physician, areas in all asymptomatic essentially plantar beneath a callous
except for head, left first metatarsal of the
surface treated with could he believed
which devices. orthopedic
proper testimony, own Maher’s find that
We reports by the medical supported provides sub- Iqbal, Dr. Marcus
of Dr. re- has the that claimant evidence
stantial perform full capacity to sidual functional therefore, We, sedentary work.
range of Secretary that the decision
affirm not entitled not disabled
claimant security income.
supplemental reasons, we affirm.
For above America, STATES
UNITED
Plaintiff-Appellee,
v. ROBINSON, A.
Wavell
Defendant-Appellant. 88-4020.
No. Appeals, Court
United States Circuit.
Sixth 8, 1989.
Argued June 13, 1990. March
Decided *2 firearm, in violation of a acquisition Jr., Atty. Behlen, Asst. U.S. A. Robert 924(a)(1)(B). 922(a)(6)and Ohio, Spartis, L. 18 U.S.C. Cincinnati, Gary (argued), Columbus, Ohio, Atty., the U.S. Office of all guilty pleas entered Robinson Lockhart, the U.S. Office of Gregory G. Later, arraignment. his charges at *3 Ohio, plaintiff-appellee. for Dayton, Atty., agreement, defen- plea of a through means Spater, Gittes (argued), to the last plea guilty Hobson of changed Gordon to a dant Ohio, Columbus, defendant- Terzian, for count, abetting. aiding & and appellant. of investigation presentence After the court completed, district was the defendant KENNEDY, and JONES Before hearing at which testimo- sentencing held a WELLFORD, Judges. Circuit con- judge The district ny presented. was of the circumstances WELLFORD, Judge. the facts and sidered Circuit upward de- case, determined an and imposed a sentence appeal from This Sentencing Guidelines from the parture plea is following guilty a court the district rea- explaining his After warranted. was Robinson, defendant, A. Wavell brought by defendant sons, sentenced the district court inappropri- was that there an who contends a imprisonment, sixty months Robinson sentencing guide- the departure from ate release, supervised of year period three Sentencing Reform the imposed under lines special assessment. a $50 (here- seq. 1984, 3553 et 18 of U.S.C. § Act appeal. of timely filed a notice pursu- Act”). appeals Robinson after “The undisputed It is 3742.1 to U.S.C. ant 18 § in guidelines the application of FACTS UNDERLYING abetting of aiding involving the case 23, 1988, agent ob- a federal On June in the false making of a statement parking of the Nor- in lot a ear served 18 U.S.C. firearm under of a acquisition Columbus, Ohio, co] containing Shop in Gun 924(a)(1)(B)would have 922(a)(6) and § § car, in the of the men Three five males. a minimum between of required a sentence defendant, who remained talking tо after of ten a maximum months and of four agent shop. The car, entered inside however, judge, court The district months. was purchase” tak- that a “straw suspected sentenced guidelines and from the departed whereby per- one place, a transaction ing prison, the months in sixty defendant person for another purchases son statutory maximum. seller. unknown who remains jury 1988, grand a federal July On parked men returned to against After indictment returned a four-count park- away it moved conspir- vehicle charged defendant, with who was in car which lot, followed thе agent 371; ing posses- 18 U.S.C. of acy, violation occupants. were and the others cocaine, in defendant distribute intent with sion and asked stopped the car then agent The 841(a)(1) and 18 21 of U.S.C. § violation containing the firearm. The for the box during and 2; carrying a firearm U.S.C. § empty There- box. agent crime, gave the in men trafficking drug to a in relation in the car the men agent directed aiding upon 924(c); 18 of U.S.C. § violation and to move in the air put their hands in to statement making a false abetting in probation, super- imprisonment, part: pertinent term provides in U.S.C. 3742
1. 18 established the maximum rеlease than vised (a) Appeal defendant.—A range, a more includes in limiting appeal the district file a notice supervised probation or final condition sen- of an otherwise for review (b)(ll) 3563(b)(6) or under section if the sentence— tence release law; guide- (1) imposed in violation established was the maximum than an incorrect imposed as a result of (2) was range; or line sentencing guidelines; or application of the for which (4)was imposed an offense specified in (3) greater the sentence plainly than sentencing guideline and is is no there range to the extent applicable guideline unreasonable. greater fine includes that the sentence firearm in his out of the car. One pocket. At defendant’s feet occupants had a SENTENCING GUIDELINE CRIMINAL HISTORY CATEGORY TOTAL OFFENSE LEVEL 4-10 Mos. I probation The officer did not recommend nylon bag containing just- was a black 2K2.1(c)(1), enhancement under Guideline firearm, purchased Tech 9 and a second permits enhancement when fire- weapon purchased gun at the same similar attempt arm is used in the commission or shop just days two earlier. Also found on criminal another offensе. baga the rear floor of the car was contain- ing grams crack cocaine located 1.22 on probation officer stated her re- (defen- passenger port, however, side of the floorboard upward departure that an side). sentencing might dant seated on the rear driver’s be warranted based *4 (1) upon marijuana defendant’s sales in guilty plea, entry After Probation (2) City; York New the assertion of An- Holly Renner interviewed defen- Officer gave selm Nathaniel that him defendant process preparing presen- dant in the of purchas- coсaine base for his assistance in report. tence Robinson advised Renner firearm; (3) ing the and defendant’s admis- that came to from New York he Columbus sion that he intended to resell the firearms City buy firearms which he intended to to in New York. in York. Defendant resell New admitted sentencing hearing, At Nathaniel’s which Raymond buy paid that he Miller to $30 defendant’s, on day occurred the same as firearm, purchase of which was wit- Nathaniel testified that he received the agent, federal nessed defendant exchange crack from defendant in for his paying also admitted onе Barbara Harrison in purchasing guns, assistance and that purchase weapon the other similar $50 going he was to smoke it. Nathaniel’s Altogether paid approximately for him. he however, attorney, advised the district expected gun for each to resell $255 judge that Nathaniel was involved in the each for $500. transaction, gun but held the cocaine mere- previously been Defendant had arrested ly agent as an of defendant with instruc- City possession in New York for of mari- give person tions to it to the who would juana approximately year epi- befоre this purchase testified, the firearm. Defendant sode, charge but the was vacated on the hand, on the other that he was not a user condition that defendant be involved in no crack, possess of that he did not crack at further violations of law for six months. arrest, the time give of his that he did not prior had other known Robinson no crimi- any Nathaniel, and that he never sold Renner, nal record. Defendant told how- any cocaine. ever, regular that he was a user and seller time, marijuana. of At the same he denied REASONS FOR SENTENCE IMPOSED any knowledge of the crack cocaine found concluding In paid that Robinson had in the car. Nathaniel in the form of crack cocaine for Nathaniel,
Anselm one of the other men effectuating purchase assistance in a straw defendant, firearm, arrested with claimed that the Judge of a Graham stated: him, belonged stating cocaine that defen- The Guidelines Sentence in this case gave dant him the cocaine for his assist- period imprisonment would be a of of purchasing gun. ance in Based on this woefully four to ten months which is information, probation officer made the inаdequate for this offense. This Guide- following recommendations in reference to contemplate simple line must transaction, Sentencing Guidelines: whereas in this case we have ACCEPTANCE OF BASE OFFENSE LEVEL GUIDELINE ROLE for his Defendant was RESPONSIBILITY-GUIDELINE for his criminal conduct ment for being Defendant was IN supervisor in the criminal OFFENSE 3BI.IM acceptance an assigned given — organized of — personal responsibility a two a two leader, point activity point manager, reduction ZEl.l(a) enhance- 2K2.I [9] [2] - f [2] trade, much more than that. We have matic illegally choice for those involved in the legal purchase of firearms with the use of an weapons we have the intermediary, for the which are the purpose purchase being we have semi-auto- of an weapons illegal made drug of il- exchange in to Nathaniel the streets guns on those resale 1.22 guns and that individu- purchasing the presumably to City, York New trade, that drug packaged in the cocaine was of crack grams involved als threat to significant poses a indicating transaction packages, separate community because citizens for intended distribution. cocaine crack arrestеd, this that when Court notes finding court’s contests the also guns with a these one of had guns New resell the intended that he had fact he two magazine, fully loaded drug deal- other City, presumably to York feet, his bag at nylon in a guns these findings were that these He asserts ers. maga- fully loaded bag was a in that erroneous. clearly multiple rounds, plus containing 32 zine 3577, rounds, additional states that plus “[n]o Title U.S.C. § loose additional the car. glove box of informa on the placed shall be ammunition limitations has this defendant character, Court noted background, concerning tion plea аgreement aof benefit received the person convicted aof and conduct in the dismissal has resulted the United court of which a offense which he charges for very serious some purpose consider receive *5 many, been incarcerated have could appropriate sentence.” imposing an signif- received he has years. So many “this statute that have noted Courts plead permitted being in benefit icant the clearly authorize in order enacted offense, relatively minor guilty to of al upon information rely judge to trial pen- possible maximum it a carrying with defen the activity for which leged criminal imprisonment. years alty of five Smith prosecuted....” not been dant had this de- that Now, concludes the Court (10th 1193, 1196 States, 551 F.2d v. United community danger to ais fendant 830, S.Ct. denied, 98 434 U.S. Cir.), cert. City, York community of New the (1977) (citing United 113, 90 L.Ed.2d 54 from the depart going to and the Court 443, S.Ct. Tucker, 92 404 U.S. Court v. case and the in this States Guidelines (1972); maxi- v. the 589, in this case 592 Williams impose L.Ed.2d going to 30 provided Congress York, 337 U.S. sentence New mum People the State of offense, namely five particular (1949)). for this 1079, 1337 241, 93 L.Ed. S.Ct. 69 years. an conduct may appropriately judge “[A] impоse Court will Now, the in addition largely unlimited scope, in broad inquiry release supervised period of three-year may he of information the kind as to either That the following conditions: with may it consider, from which the source or crimes, feder- any commit not defendant Tucker, 404 U.S. v. States come.” United by local; he abide al, state, v. 591, in quoted Roberts 446, at 92 S.Ct. at release supervised conditions standard 552, 556, S.Ct. 100 States, U.S. 445 United by this dis- adopted by and recommended (1960). also See 1362, 622 1358, 63 L.Ed.2d prohibited he be court, and that trict — U.S. -, 109 S.Ct. Smith, v. Alabama any other a firearm possessing (1989). Sentences 2201, 865 104 L.Ed.2d weаpon. dangerous misinfor material basis on the imposed a fine impose Now, will Court circumstances, how some under mation facts indicate case because in this Roberts, process. due ever, may violate paying fine. capable of is not defendant at 556, 1362. 100 at S.Ct. 445 U.S. statutory $50 impose will The Court Court’s be That will assessment. may consider The district case. sentence judgment and sentence, determining hearsay evidence opportu given must be accused FOR REVIEW but OF STANDARD must it, evidence and the AT nity to refute FACTFINDING reliability in indicia SENTENCING minimal some bear process. right to due resрect of defendant’s court’s challenges the district Robinson 1546, F.2d 765 Rodriguez, v. States cocaine United gave crack finding 1116 Cir.1985); (11th Sentencing in formulat-
1555
United States v. Ote
Commission
(5th Cir.1989).
ro,
1412
In chal
ing
guidelines.”
868 F.2d
Circumstances that
by
considered
lenges
may
departure
guide-
to the evidence
warrant
from the
sentencing judge, the defendant must es
cannot,
pursuant
provision
lines
to this
challenged
ma
evidence is
nature,
tablish that
very
by
comprehensively
their
unreliable, and that such
terially
false
analyzed
listed and
advance. The con-
actually
false
information
or unreliable
trolling decision as to whether and to
for the sentence. Rod
served as the basis
departure
what extent
is warranted can
riguez, supra.
only
be made
the court at the time of
Nonetheless,
sentencing.
present
findings
The district court’s
of fact
by identify-
section seeks to aid the court
that underlie the ultimate sentence ordi
ing some of the factors that the Commis-
narily
clearly
are
under a
errone
reviewed
fully
sion has not been able to
take into
3742(d).
18
ous standard.
U.S.C.
See
in formulating precise guide-
account
Velasquez-Mercado,
United
v.
872
—
Any
may
lines.
case
invоlve factors in
Cir.),
denied,
632,
(5th
F.2d
635
cert.
addition to those identified that have not
187,
-,U.S.
110 S.Ct.
Application of do take into consideration a factor listed impose shall part, departure a sentence.—The court a in this guide- the kind, the the sentence of within only line is warranted if factor (a)(4) range, referred to in un- subsection present degree substantially to a in ex- aggravating the court that an less finds ordinarily cess that which is in- mitigating or circumstance exists that volved in the conviction. offense of adequately was not taken into considera- by Sentencing tion Commission possible Harms identified as a basis for
formulating guidelines and that departure guidelines from the should be should result a sentence different only taken into they account when are from that described. conviction, relevant to the offense of 3553(b). 18 U.S.C. § within the limitations set forth in K, guidelines, poli- of the a Part 5K2.0 added). (emphasis 1B1.3. cy statement, amplifies this standard: weapons: Section 5K2.6 deals with 3553(b) sentencing Under U.S.C. § may impose weapon dangerous If a or court a sentence outside instrumentali- range applicable ty possessed was used or in the established commis- guideline, if the court finds “that there sion of the offense the in- court aggravating mitigating cir- exists an crease the sentence above the authorized kind, degree guideline range. a in- cumstance of or to a not The extent of the adequately ordinarily depend taken into consideration crease should on the
1H7
2 and
Counts
sentencing to dismiss
the man-
weapon,
dangerousness
Defendant
respects
as
Indictment
used,
the extent
it was
in which
ner
ANTHONY ROBINSON
The WAVELL
others.
endangered
use
which its
against him
charges
additional
not to file
warrant
might
of a firearm
discharge
increase,
charged in the
his activities
based on
(emphasis
sentence
substantial
illegal drug
on other
or based
Indictment
added).
Dis-
activity in the Southern
or firearm
dealing with the
is also
There
the date
occurring prior to
of Ohio
trict
depar-
history and
criminal
adequacy of
Defen-
and as which
of the Indictment
ture:
state-
testimony or makes
gives
dant
is war-
provision
departure under
A
agreement.
to this
pursuant
ments
catego-
history
criminal
when
ranted
effect
must next consider
We
seri-
underrepresents
significantly
ry
First, defen-
this case.
agreement in
plea
histo-
criminal
of the defendant’s
ousness
was
that he
alerted to
fact
dant
that the
likelihood
ry or the
sentence
maximum
year
a five
subject to
The
crimes....
further
commit
will
United States
fine. The
a substantial
rele-
all the
review of
may, after
one
of counts
dismissal
Attorney sought
de-
information,
conclude
vant
(1)
on
defendant’s
through three based
signifi-
history was
criminal
fendant’s
in-
all matters
testimony about
truthful
most
that of
than
cantly
serious
more
il-
“all
indictment and
other
volved
history
criminal
in the same
defendants
occurring in
activity
legal drug
up-
consider
and therefore
category,
in which he
of Ohio”
District
Southern
guidelines.
from the
ward
he had
about
involvement
had
itself
record
arrest
However,
prior
“complete
(2) providing a
knowledge, and
4A1.3.
under
considered
not be
shall
matters,” and
concerning such
statement
4A1.3.
Section
on
debriefings
“supplemental
(3)giving
provided,
in this case
agreement
plea
The
Attor-
United
matters.”
such
follows:
part, as
pertinent
agreed
cooperation,
upon
ney, based
ROB-
ANTHONY
WAVELL
informa-
on
charges”
additional
to “file
truthfully and
testify
agrees to
INSON
“activity in
South-
*7
furnished about
tion
per-
concerning all matters
completely
of Ohio.”
District
ern
herein
returned
taining to the Indictment
to be
seems
agreement
plea
This
drug or
illegal
other
any and all
to
1B1.8,
sets
by
contemplated
§
one
occurring in the South-
activity
to co
agrees
“where a
out
may
he
in
of Ohio which
District
ern
by prоviding
government
operate with
may
as to which he
or
involved
been
have
activities
concerning unlawful
information
further
knowledge. Defendant
have
agrees that
government
others,
of
statement
complete
a
provide
to
agrees
provided
so
information
self-incriminating
con-
States
of
United
to authorities
defendant,”
against
used
not be
will
entry
to the
prior
matters
cerning such
in
be used
is not to
information
such
then
agree-
to this
guilty plea pursuant
his
of
(emphasis
range,
guideline
setting the
to
submit
agrees to
Defendant
ment.
added).
mat-
such
debriefings on
supрlemental
informa
certain
by authorities
us that
requested
It seems
ters whenever
did
cooperation
or
in
States,
before
by defendant
given
whether
United
tion
District
in the Southern
conduct
is
plea
his
entered.
not involve
after
crimi
his own
Ohio,
involved
and some
entered, and of
guilty
plea
If such
At
others.
activity of
activities, not the
WA- nal
withdrawn,
not
under
time,
if
information
same
acts
ROBINSON
ANTHONY
VELL
aof
the form
in
1B1.8,
equivalent
its
of this
terms
other
§
with all
accordance
“in
used
not to be
was
agreement,
Attorney
plea
the United
agreement,
applicable
of the
agrees
determination
of Ohio
District
the Southern
used
not be
certainly should
it
range,” then
time
at the
court
seek leave
depart
and to en-
by the district court
The district court also indicated as a
hance the sentence above
otherwise
basis for
the “use of an interme
guideline range. Application
applicable
diary”
acquisition
in
weapon
of the
guidelines
page 1.24 of the
manual weapons
question.
Note
guilty plea
The
by stating:
much
“such defen-
indicates as
upon
government’s
this case based
subject
not
to an increased
dant should
be
“plea agreement submission of elements
by
cooperation
of that
sentence
virtue
penalties
922(a)(6)
for 18 U.S.C.
§§
government agreed that the in-
(2)”
where
knowingly
was that “defendant
aided
not
revealed would
be used for
formation
making
and abetted
another
a false ...
purpose.”
such
statement
... made in connection with the
acquisition of a
(emphasis
firearm.”
add
provides
Application Note
1B1.8
§
ed). The district court cited defendant’s
“self-incriminating
information
further
use of an intermediary
justi
as one factor
cooperation agreement
оbtained under
fying departure
from the Guidelines.
not to
used to determine the defendant’s
However, this
already
fact was
accounted
added).
guideline range.” (Emphasis
for in the Guidelines calculations: defen
plea
may
agreement
this case
be deemed
dant’s offense level was increased
two
cooperation agreement,
but
district
“organizer”
because of his role as an
court has made no determination about the
Therefore,
intermediary.
this factor can
applicability in
case of
1B1.8.
justify departure
from the Guidelines.
We must remand
matter to the dis
We therefore find it error to have con
trict court for a determination as to the
departure.
sidered this as a reason for a
plea agreement upon
coop
effect
organiz
Since defendant was treated as an
furnished,
erating information
and as to
er,
moreover,
his use of
intermediary,
1B1.8,
any.
if
the effect of
Some infor
already
taken into account.
given by
upon
mation
Robinson and relied
Next, the
depar-
district court found a
well
district
be excludable
upon
ture warranted
in-
based
defendant’s
sentenсing pur
from consideration for
volvement with
weapons.”
“semi-automatic
poses.
Shorteeth,
See United States v.
A “firearm” is
underly-
defined under the
(10th Cir.1989).
1H9 must RE- we account, the circumstances Under into factors these takes ing court court for resentenc- of to the district MAND the basis however, articulate should it necessary that to if to extent ing, in order as factor and such each departure for factors have been appeal. aggravating meaningful improper review on facilitate sentencing judgе. into account taken a as mentioned also The court de sentencing that in the factor purpose KENNEDY, Judge. for the to Columbus Circuit came fendant selling for working in crackhouses of except panel’s opinion in the I concur defendant fact that The cocaine. crack regarding respect to the discussion with drug Columbus, engaged came to weapons. automatic return to trafficking, planned weapons lB1.8(a) to the may be related to New York District re departing, In Court in connec discussed previously limitations firearms, noting nature of the lied on the any In agreement. plea with the tion “weapon of are the that semi-automatics however, that defendant event, the fact applica drug trade. But the choice” in and was from elsewhere came to Columbus rejects type of explicitly ble account, stringently treated, more that on sentencing criterion: it differ as a firearm permis resident, a is not a than Columbus use, ... according to “not intended entiates sentencing a or disparity a basis for sible type of firearm.” See Guidelines upon the v. Rodri United departure. See (сommentary). government’s 2K2.1 Cir.1989), for a (6th F.2d 1059 guez, allows 5K2.6 notes that Guidelines brief departure standards. of discussion general in ac enhance the sentence the court to dangerousness of “the the vast with cordance Finally, we are mindful possessed in the commis used or expressed weapon” mounting concerns illogi But it would be empirical data offense. sion in studies and media provision general of crack this devastating effects cal construe concerning the state specific certain other comparison to Commission’s override cocaine do not is irrelevant type We of firearm that the controlled substances. ment types of the crime improper, within for appropriate sentence inappropriate to the find it sentencing judge, limits, charged in this case. reasonable evidence, to take into upon proper based guns Further, fact a de aggravating factors as account appear to be relevant does were loaded place in a house worked has fendant whether charged. While to the crime regularly distribut is cocaine crack where consider a relevant would be gun is loaded in substantial ed; himself dealt has of a involving illegal use crimes ation for weap supplied crack;3 or has amounts offense robbery), this armed (e.g., dis cocaine dealers crack ons known guns. acquisition of illegal at is aimed in this case concern Our tributors. acquire used the means is on The focus entirely came information whether for which purpose and the firearms himself, under cooperating load gun acquired. Whether they are use may preclude agreement, plea severity says littlе about ed detriment to the such information *9 il- might have been gun loaded crime: a Robinson himself. guidelines to provision of the 2K2.1(c)(2) We note respect, we note In flexibility that can achieved applies statute under illustrate guidelines, which necessitating plea, a de- guilty appropriate entered his case without which defendant no guidelines, but we offer parture states: possessed used applicability If as to opinion at this time attempted with commission in connection defendant’s case. section in above-quoted offense, apрly § 2X1.1 of another commission Solicitation, Conspiracy) crack; re- (Attempt, wheth- a user of he denies is 3. Defendant offense, resulting if the spect fact-finding to that other subject to is a distributor er he was higher determined than offense level court. the district 2K2.1(a)]. [under § 1120 hunting, and an
legally acquired for bear
empty drug trade. one for acquired apparently illegal purpose of resale.
firearms for the observes, whether the government
As the pur for an unlawful
firearm was obtained determining
pose important factor again, appropriate sentence. Once
however, this factor is built into Guidelines four-point reduction 2K2.1: it calls for the firearms were offense level where purpose. The offense
obtained for a lawful assumption set under the
level has been weapons acquired
that the for unlaw were therefore, purposes;
ful the defendant’s purposes ordinarily justify a
illicit do not Uca,
departure. United States v. See 783, (3d Cir.1989) (under
F.2d Guide 2K2.1,
lines “the intended use of the warranting
guns up is not a circumstance could, departure”). Departure
ward
course, if still be warranted the court finds applies.1 5K2.0 Guidelines § America,
UNITED STATES
Plaintiff-Appellee,
v. GUARIN,
Jorge Defendant-Appellant.
No. 89-3278. Appeals,
United States Court
Sixth Circuit. 1,
Argued 1989. Dec.
Decided March 1990. (argued),
Blas E. Serrano Office of the Cleveland, Ohio, Atty., plaintiff-ap- U.S. for pellee. (argued),
William A. Carlin Carlin & Car- Ohio, lin, Pike, Pepper defendant-appel- lant. *10 applicable guidelines, specific degree substantially present
1. Where the of- if the factor is to a characteristics, ordinarily adjustments excess involved fense do take the offense of conviction. part, into consideration a factor listed in this only from the is warranted Guidelines 5K2.0.