UNITED STATES COURT OF APPEALS
Filed 7/17/96
FOR THE TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-4052
(D.C. No. 92-CR-260)
ADRIAN DEAN DUTCHIE, (D. Utah)
Defendant-Appellant.
ORDER AND JUDGMENT*
Before EBEL, BARRETT, and HENRY, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this appeal.
See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered submitted
without oral argument.
*
This order and judgment is not binding precedent, except under the doctrines of law
of the case, res judicata, and collateral estoppel. The court generally disfavors the citation
of orders and judgments; nevertheless, an order and judgment may be cited under the terms
and conditions of 10th Cir. R. 36.3.
The defendant, Adrian Dean Dutchie, convicted of second-degree murder, appeals the
district court’s decision to make an upward adjustment of his sentence under United States
Sentencing Guideline (U.S.S.G.) § 3A1.1, to reject a downward adjustment of his sentence
based on Dutchie’s fetal alcohol syndrome, and to make an upward departure from the
Sentencing Guidelines based on U.S.S.G. § 4A1.3. We exercise jurisdiction pursuant to
18 U.S.C. § 3742(a) and 28 U.S.C. § 1291. We affirm in part, vacate in part, and remand for
resentencing.
Background.
Dutchie stabbed his seventy-year old grandmother to death at her home, apparently
because she was teasing him, and pled guilty to second-degree murder for this offense. The
presentence report determined Dutchie’s base offense level was 33, based on the second-
degree murder conviction, and calculated his criminal history score at category III. R. Vol.
III at 12, 18. See U.S.S.G. §§ 2A1.2 and 4A1.1.
At sentencing, the district court, in accordance with recommendations in the
presentence report, adjusted Dutchie’s offense level upward two-levels based on the
vulnerability of his victim pursuant to U.S.S.G. § 3A1.1. R. Vol. II at 35-36. The district
court also departed upward from the Sentencing Guidelines based on U.S.S.G. § 4A1.3(d)
and (e), in accordance with the recommendations in the presentence report, finding that
criminal history category III significantly underrepresented the seriousness of Dutchie’s past
criminal conduct and the likelihood that he would commit other crimes. R. Vol. II at 38-39.
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Dutchie requested a downward departure from the Sentencing Guidelines in his objections
to the presentence report and at his sentencing hearing on the basis of medical reports that
he has fetal alcohol syndrome, though he told the district court that the Guidelines did not
provide for a departure based on this condition. R. Vol. I, Tab 67 at 2. The district court
considered and rejected such a downward departure. R. Vol. II at 36-37.
Vulnerable Victim Adjustment.
Dutchie first argues that the district court erred in enhancing his sentence under
U.S.S.G. § 3A1.1 on the ground that the victim in this case, his seventy-year old
grandmother, was particularly vulnerable, noting that neither the presentencing report nor the
district court made any individualized findings with respect to her vulnerability. The district
court found that Dutchie’s grandmother was vulnerable because of her age, stating that
physical strength in seventy-year old women is likely to be significantly reduced. R. Vol. II
at 35. The district court also found that Dutchie rendered his grandmother vulnerable by
knocking her to the ground before getting the knife to stab her, and by continuing to stab her
while she was still alive but no longer able to defend herself. Id. at 36.
We review the district court’s factual determinations for application of the guidelines
under the clearly erroneous standard. United States v. Pelliere, 57 F.3d 936, 940 (10th Cir.
1995). The district court’s legal conclusions regarding the guidelines are subject to de novo
review. United States v. Johnson, 42 F.3d 1312, 1320 (10th Cir. 1994), cert. denied, 115 S.
Ct. 1439 (1995); but cf. Koon v. United States, Nos. 94-1664, 94-8842, 64 U.S.L.W. 4512,
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1996 WL 315800, at *11-13 (U.S. June 13, 1996)(applying abuse of discretion to departure
decisions).
Sentencing Guideline § 3A1.1 provides for a two-level upward adjustment to a
defendant’s offense level:
If the defendant knew or should have known that a victim of the offense was
unusually vulnerable due to age, physical or mental condition, or that a victim
was otherwise particularly susceptible to the criminal conduct.
We have held that advanced age, without more, does not render a victim unusually
vulnerable. United States v. Smith, 930 F.2d 1450, 1455 (10th Cir.), cert. denied, 502 U.S.
879 (1991). “In order to classify a victim as ‘vulnerable,’ the sentencing court must make
particularized findings of vulnerability. The focus of the inquiry must be on the victim’s
personal or individual vulnerability.” United States v. Brunson, 54 F.3d 673, 677 (10th Cir.),
cert. denied, 116 S. Ct. 397 (1995)(quotations omitted). When enhancement is based solely
on a victim’s membership in the class of elderly persons, “the district court’s finding [is]
insufficient, as a matter of law, to justify the adjustment of appellant’s offense level under
§ 3A1.1." Smith, 930 F.2d at 1455.
No evidence was presented here that the grandmother suffered from any particular
weaknesses. As in Smith, the district court applied § 3A1.1 on the basis of the victim’s
elderly status without making the required analysis that she was particularly vulnerable based
on individualized factors. See Smith, 930 F.2d at 1455. The district court’s failure to make
particularized findings as to the grandmother’s unusual vulnerability was error.
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The government argues the “vulnerable victim” adjustment can be upheld based on
the district court’s finding that Dutchie rendered his grandmother vulnerable by knocking her
to the ground before his attack and continuing his attack after she was unable to defend
herself. We are not persuaded. “The fact that [one is] victimized is insufficient, by itself,
to show that [one is] especially vulnerable.” Brunson, 54 F.3d at 677. “‘The vulnerability
that triggers § 3A1.1 must be an ‘unusual’ vulnerability which is present in only some
victims of that type of crime. Otherwise, the defendant’s choice of a likely victim does not
show the extra measure of criminal depravity which § 3A1.1 intends to more severely
punish.’” United States v. Creech, 913 F.2d 780, 782 (10th Cir. 1990)(quoting United States
v. Moree, 897 F.2d 1329, 1335 (5th Cir. 1990)).
We have already noted the absence of any particularized findings that Dutchie’s
grandmother was unusually vulnerable because of her age or physical or mental condition.
The manner in which Dutchie knocked down and repeatedly stabbed his victim does not, by
itself, demonstrate that she possessed any unusual personal vulnerability or that she was more
susceptible because of the manner of Dutchie’s attack than would be any other victim of his
stabbing. We conclude Dutchie’s sentence was imposed using an incorrect application of
§ 3A1.1. Accordingly, because the district court’s findings were inadequate to justify
application of § 3A1.1, we remand this aspect of Dutchie’s sentencing for further findings.
Downward Departure for Fetal Alcohol Syndrome
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Dutchie next contends the district court erred by its failure to make a downward
departure to his sentence pursuant to U.S.S.G. § 5H1.4 because he has fetal alcohol
syndrome. Although Dutchie requested the sentencing court make a downward departure
based on fetal alcohol syndrome, his contention that § 5H1.4 provides a basis for such a
departure is raised for the first time on appeal. Indeed, his position before the sentencing
court was that the Sentencing Guidelines contained no provision that took his fetal alcohol
syndrome into account for sentencing purposes.
We agree with the government that we lack jurisdiction to review the district court’s
refusal to depart downward. “A discretionary refusal to depart downward is not reviewable
by this court unless it appears from the record the sentencing court erroneously believed the
Guidelines did not permit a downward departure.” United States v. Nelson, 54 F.3d 1540,
1544 (10th Cir. 1995).
Dutchie contends that his representation to the district court that the Sentencing
Guidelines did not provide for a downward departure for fetal alcohol syndrome, coupled
with the court’s failure to address whether § 5H1.4 would authorize such a departure,
demonstrates that the court was not aware it had discretionary authority to depart downward.
We disagree. “If the record is ambiguous concerning the district court’s awareness of its
discretion to depart downward, we presume the court was aware of its authority.” Id.
“[U]nless the judge’s language unambiguously states that the judge does not believe he has
authority to downward depart, we will not review his decision.” United States v. Rodriguez,
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30 F.3d 1318, 1319 (10th Cir. 1994). The court’s “failure to mention his discretion to depart
downward does not imply a lack of understanding of that discretion. We do not assume that
silence indicates ignorance.” United States v. Rowen, 73 F.3d 1061, 1063 (10th Cir. 1996).
Here, the district court considered whether U.S.S.G. § 5K2.13 provided a basis for
downward departure based on Dutchie’s fetal alcohol syndrome, concluding it did not. The
district court was aware it had some discretion under the Sentencing Guidelines to make a
downward departure. Despite Dutchie’s assertion that no guideline provision applied, the
district court considered the possible application of § 5K2.13. Moreover, in part because of
Dutchie’s fetal alcohol syndrome, the court decided not to make an upward departure under
U.S.S.G. § 5K2.8, despite its finding that that section applied. That it did not also address
the potential application of § 5H1.4 is not evidence that the district court was unaware of its
discretion to depart downward. See Rowen, 73 F.3d at 1063. Thus, we lack jurisdiction to
review the district court’s discretionary refusal to depart downward.
Upward Departure for Past Criminal History
Dutchie next contends the district court erred in making an upward departure under
U.S.S.G. § 4A1.3 based on its finding that Dutchie’s criminal history category did not
adequately reflect the seriousness of his past criminal conduct. The Supreme Court recently
held that a district court’s decision to depart from the Guidelines is to be reviewed under an
abuse of discretion standard. Koon, 1996 WL 315800, at *11-13. Subject to the overriding
requirement that we accord the district court’s departure decision substantial deference, Koon
7
does not alter the three-tiered review process we apply in analyzing the propriety of a district
court’s decision to depart upward. First, we examine the record “to determine whether the
district court properly identified the existence of appropriate circumstances warranting a
departure.” See United States v. Okane, 52 F.3d 828, 831 (10th Cir. 1995)(citing United
States v. White, 893 F.2d 276, 277 (10th Cir. 1990)). Second, we review the record for clear
error to “‘ascertain whether the circumstances cited by the district court to justify departure
actually exist in the instant case.’” Id. (emphasis omitted)(quoting White, 893 F.2d at 278).
Third, we assess “whether the degree of departure actually imposed by the district court was
reasonable.” Id. (citations omitted).
Sentencing Guideline § 4A1.3 permits the sentencing court to depart from the
guidelines if the sentencing court has reliable information that defendant’s criminal history
category does not adequately reflect the seriousness of the defendant’s past criminal conduct
or the likelihood that the defendant will commit other crimes. The section describes the type
of information which may be considered, including the following, relied upon here by the
district court:
(d) whether the defendant was pending trial or sentencing on another charge
at the time of the instant offense; [or]
(e) prior similar adult criminal conduct not resulting in a criminal conviction.
The district court found, adopting the findings in the presentence report, that an
upward departure was warranted under § 4A1.3 because of three incidents. First, Dutchie
assaulted police officers several months prior to stabbing his grandmother. Dutchie failed
8
to appear at the assault trial and a bench warrant was issued for his arrest one month before
he killed his grandmother. R. Vol. III at 18. The assault charges were dismissed after he was
charged for the present offense. Id. at 19. Second, while in prison awaiting conviction and
sentencing on the present offense, Dutchie sliced an inmate’s neck with a razor blade knife
known as a “shank.” Dutchie admitted he was attempting to kill the inmate; nevertheless,
the charges for this offense were dismissed when he pled guilty to his grandmother’s murder.
Id. at 19-20. Finally, at his sentencing hearing, Dutchie admitted to recent possession of a
shank while in prison awaiting sentencing for his murder conviction. R. Vol. II at 8, 11. We
conclude that the district court adequately articulated the circumstances for departure.
Dutchie does not dispute the factual bases for the court’s upward departure, but
contends that his past crimes do not fall within § 4A1.3(d) or (e). Contrary to his contention,
the fact that a bench warrant had been issued and Dutchie was pending trial for his assault
on the police officer when he killed his grandmother clearly is information properly
considered by the district court under § 4A1.3(d). Furthermore, the district court properly
considered Dutchie’s attempted murder of a prisoner and his possession of a shank in prison
under § 4A1.3. We have held that “[s]ubsequent criminal conduct involving the commission
of similar offenses before sentencing . . . is a permissible basis for departing upwards in the
criminal history category.” United States v. Yates, 22 F.3d 981, 987 (10th Cir. 1994) (citing
United States v. Fortenbury, 917 F.2d 477, 479 (10th Cir.1990)); see also United States v.
Keys, 899 F.2d 983, 990 (10th Cir.)(holding that a prison disciplinary record is a valid
9
ground for an upward departure to the criminal history score), cert. denied, 498 U.S. 858
(1990); United States v. Archambault, 62 F.3d 995, 1001 (7th Cir. 1995)(applying § 4A1.3(e)
in upholding upward departure where defendant continued to engage in the same criminal
conduct while awaiting sentencing).
Finally, we review the reasonableness of the court’s departure. To assess whether the
degree of departure is reasonable, we must consider the justifications for departure and,
among other factors, the seriousness of the offense; the need for deterrence; public
protection; the sentencing pattern of the Guidelines; and the need to avoid sentencing
disparities. White, 893 F.2d at 278. “When departing from the Guidelines, the court should
look to the Guidelines for guidance in characterizing the seriousness of the aggravating
circumstances to determine the proper degree of departure.” United States v. Jackson, 921
F.2d 985, 990 (10th Cir. 1990)(en banc).
Although formulas of mathematical exactitude are neither required nor
possible, the district court should articulate the objective criteria used as a
basis for determining the actual sentence imposed. In many instances, this will
consist of an extension of or extrapolation from other guideline levels or
principles, or use of an analogy to other closely related conduct or
circumstances that are addressed by the guidelines.
Id. at 990-91 (quoting United States v. Gardner, 905 F.2d 1432, 1438 (10th Cir.), cert.
denied, 498 U.S. 875 (1990)). We indicated in Jackson that “the career offender category
. . . may provide the appropriate analogy in some cases.” Id. at 993 (citing Gardner, 905 F.2d
at 1437-39).
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That is precisely what the district court did in this case. The district court considered
the nature and extent of Dutchie’s criminal history and concluded that if Dutchie’s offenses
were taken into account in the criminal history calculation, he would be classified as a career
offender under U.S.S.G. § 4B1.1(a). Using this analogy, the district court determined his
criminal history category would be a category VI, see U.S.S.G. § 4B1.1, and that his offense
level should increase to the next higher offense level of 34. The district court’s use of the
career offender criminal history score as an analogy to determine the appropriate degree of
departure was entirely reasonable, and his method of moving up the offense level after
finding that an upward departure from criminal history category VI was warranted was
proper under the Sentencing Guidelines. U.S.S.G. § 4A1.3, p.s.; Okane, 52 F.3d at 833-34
n.5.
The judgment of the United States District Court for the District of Utah is
AFFIRMED as to the upward departure under U.S.S.G. § 4A1.3 and the determination not
to make a downward departure, and is VACATED and REMANDED for resentencing as to
the vulnerable victim adjustment.
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Entered for the Court
David M. Ebel
Circuit Judge
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