United States v. Jackson

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 93-1826

UNITED STATES OF AMERICA,

Appellant,

v.

MICHAEL JACKSON,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Francis J. Boyle, Senior U.S. District Judge]

Before

Selya and Cyr, Circuit Judges,

and Pettine,* Senior District Judge.

Margaret E. Curran, Assistant United States Attorney, with

whom Edwin J. Gale, United States Attorney, and Gerard B.

Sullivan, Assistant United States Attorney, were on brief, for

the United States.

July 19, 1994

*Of the District of Rhode Island, sitting by designation.

SELYA, Circuit Judge. We chronicle today one more
SELYA, Circuit Judge.

vignette that forms a part of "the seemingly endless line of

criminal appeals marching stolidly to the beat of the federal

sentencing guidelines." United States v. Ocasio-Rivera, 991 F.2d

1, 2 (1st Cir. 1993). Concluding, as we do, that the

circumstances relied upon by the court below are insufficient to

warrant a downward departure from the guideline sentencing range

(GSR), we vacate the sentence previously imposed on defendant-

appellee Michael Jackson and remand for sentencing.

I. BACKGROUND

On April 19, 1993, a jury convicted appellee of

possessing cocaine with intent to distribute the drug, 21 U.S.C.

841(a)(1) (1988); being a felon in possession of a firearm, 21

U.S.C. 922(g) (1988); and using a firearm during and in

relation to a drug trafficking crime, 18 U.S.C. 924(c) (1992).

Since, these convictions formed the tail end of an extensive

criminal record that included convictions for several crimes of

violence, appellant qualified for enhancement of his sentence

under 18 U.S.C. 924(e) (1988).

At the disposition hearing, the district court found

appellee to be an armed career criminal within the meaning of

U.S.S.G. 4B1.4(a) (Nov. 1992) (instructing that "[a] defendant

who is subject to an enhanced sentence under the provisions of 18

U.S.C. 924(e)" is to be so regarded). Factoring in appellee's

status as an armed career criminal and making other standard

adjustments, the court calculated the GSR to be 262-327 months

2

(offense level 34, criminal history category VI). In addition,

the court determined that appellee qualified for a mandatory 5-

year sentence anent the use of a firearm during and in relation

to a drug trafficking crime a sentence which, by law, had to be

tacked onto whatever sentence the court imposed with respect to

the Jackson's conviction under 21 U.S.C. 841(a)(1). See 18

U.S.C. 924(c). In short, the guidelines, departures aside,

forecast a minimum prison term of 27 years.

But the district court did not stay within the GSR.

Instead, it spontaneously departed, sentencing appellee to an

aggregate 20-year prison term (a total of 15 years on the drug

trafficking and felon-in-possession counts, as enhanced pursuant

to 18 U.S.C. 924(e), plus a 5-year consecutive sentence

pursuant to 18 U.S.C. 924(c)). The court premised the downward

departure on the rationale that an incarcerative sentence within

the parameters set by the GSR would be tantamount to "a life

sentence" for, the court said, in view of Jackson's age (40), it

would be "unlikely" that he would "ever see any light outside of

prison." The court added:

I just happen to think that this is not the
kind of thing the sentencing commission may
have had in mind. . . . It seems to me that
this is one of those circumstances where what
[the defendant] did was terribly wrong but
not so wrong that a life sentence is
appropriate. . . . I am going to depart out
of a concern for the system of justice.

3

The government now appeals.1 It argues that the

sentencing court's stated reasons are legally insufficient to

warrant a downward departure. We agree.

II. DEPARTURES FROM THE GUIDELINES

The basic theory behind the sentencing guidelines is

that, in the ordinary case, the judge will apply the guidelines,

make such interim adjustments as the facts suggest, compute a

sentencing range, and then impose a sentence within that range.

See 18 U.S.C. 3553(a)(b) (1988); see also United States v.

Rivera, 994 F.2d 942, 946 (1st Cir. 1993); United States v. Diaz-

Villafane, 874 F.2d 43, 47-48 (1st Cir.), cert. denied, 493 U.S.

862 (1989).

Departures are the exception, not the rule. See Diaz-

Villafane, 874 F.2d at 52. Thus, it is only in the extraordinary

case the case that falls outside the heartland for the offense

of conviction that the district court may abandon the guideline

sentencing range and impose a sentence different from the

sentence indicated by mechanical application of the guidelines.

See Rivera, 994 F.2d at 947-48. One relatively common basis for

departure arises when the court "finds that there exists an

aggravating or mitigating circumstance of a kind, or to a degree,

not adequately taken into consideration by the Sentencing

Commission in formulating the guidelines that should result in a

1Despite due notice, appellee has neither filed a brief nor
applied for the appointment of counsel on appeal. Hence, only
the government presented oral argument. See Fed. R. App. P.

31(c); 1st Cir. R. 45.

4

sentence different from that described." 18 U.S.C. 3553(b);

see also U.S.S.G. 5K2.0 (implementing statute); see generally

Rivera, 994 F.2d at 946; Diaz-Villafane, 874 F.2d at 49.2

It is clear that the guidelines are intended to

alleviate disparity in sentencing and to make it reasonably

likely that similarly situated offenders will receive comparable

punishments, regardless of where they are prosecuted or which

judge presides at sentencing. See S. Rep. No. 225, 98th Cong.,

2d Sess. 38, 51, 161 (1984), reprinted in 1984 U.S.C.C.A.N. 3182,

3221, 3234, 3344 (explaining need for sentencing guidelines "[in]

order to lessen the degree to which different judges impose[]

different sentences in comparable cases"); Charles J. Ogletree,

Jr., The Death of Discretion? Reflecting on the Federal

Sentencing Guidelines, 101 Harv. L. Rev. 1938, 1944 (1988)

(noting that sentencing reform came about largely in response to

"frequent criticism of the broad discretion afforded federal

judges in sentencing [which] led to disparate treatment for

similarly situated individuals"); see also Rivera, 994 F.2d at

946; United States v. Aguilar-Pena, 887 F.2d 347, 352 (1st Cir.

1989). Ensuring uniformity inevitably means restricting judicial

discretion, for, as we have stated, "[g]iving judges free rein to

forsake the guidelines in cases falling within the heartland for

2The other mainstay of departure jurisprudence involves the
defendant's "substantial assistance" to the government. See 18

U.S.C. 3553(e) (1988); 28 U.S.C. 994(n) (1988); see also

U.S.S.G. 5K1.1 (implementing statute); see generally United

States v. Mariano, 983 F.2d 1150, 1155-57 (1st Cir. 1993). This

appeal does not require us to delve into the intricacies of
substantial assistance.

5

a given offense would be tantamount to judicial repudiation of

the Sentencing Reform Act and the important policies which

propelled its enactment." Aguilar-Pena, 887 F.2d at 352.

Consequently, while the power to depart offers judges a modicum

of flexibility in criminal sentencing, this power can only be

exercised for reasons that the guidelines themselves endorse.

In reviewing the legitimacy of departures from the

guidelines, appellate courts are expected to engage in a

tripartite analysis. See Rivera, 994 F.2d at 950-52; Aguilar-

Pena, 887 F.2d at 350; Diaz-Villafane, 874 F.2d at 49. The first

step requires an evaluation of the circumstances relied on by the

lower court in determining that the case is sufficiently

"unusual" to warrant a departure. Aguilar-Pena, 887 F.2d at 350.

That question is one of law, evoking plenary appellate review

shorn of deference to the court below.3 See Diaz-Villafane, 874

F.2d at 49.

To guide judicial consideration of departures at this

stage, we have suggested that a sentencing court should analyze a

case along the following lines:

(1) What features of the case, potentially,
take it outside the Guidelines' "heartland"
and make it a special, or unusual case? (2)
Has the Commission forbidden departures based
on those features? (3) If not, has the

3For present purposes, we need not progress past the initial
step. In the interest of completeness, however, we note that, if
the stated circumstances pass muster, the next step requires a
reviewing court to determine whether those circumstances are
adequately documented in the record. See Aguilar-Pena, 887 F.2d

at 350. Finally, the court must gauge the departure's
reasonableness. See id.

6

Commission encouraged departures based on
those features? (4) If not, has the
Commission discouraged departures based on
those features?

Rivera, 994 F.2d at 949. If the case is not "special" or

"unusual" a condition which, for simplicity's sake, we shall

call "atypical" then the court may not depart under section

5K2.0. If the case is atypical, that is, if it falls outside the

heartland for the offense of conviction, the court must then

focus on the nature of the atypicality and its place in the

departure hierarchy. If the case is atypical only because of the

presence of a feature that comprises a "forbidden" ground, the

sentencing court may not depart. If the atypicality stems from

an "encouraged" ground, the court may (and most likely will)

depart. If the atypicality consists of a ground for departure

that is neither "forbidden" nor "encouraged," but is simply

"discouraged," then the court must take a long, hard look to

determine whether the case differs significantly from the

ordinary case in which the particular atypicality is present.

See Rivera, 994 F.2d at 949.

III. ANALYSIS

Here, the primary factors relied on by the district

court are the defendant's age and the length of the sentence

dictated by the guidelines. Neither ground justifies a downward

departure.

A. Age.

Age is among the various specific offender

characteristics that the guidelines treat as "discouraged" for

7

purposes of a departure. In other words, age is a factor "not

ordinarily relevant" to the departure calculus. U.S.S.G. 5H1.1,

p.s.; accord Rivera, 994 F.2d at 948; United States v. Norflett,

922 F.2d 50, 54 (1st Cir. 1990); see also United States v. Jones,

18 F.3d 1145, 1149-50 (4th Cir. 1994) (explaining that the

Sentencing Commission adequately considered age in formulating

the sentencing guidelines). And Jackson's age 40 is surely

not sufficiently "special" or "unusual" to ferry the case outside

the heartland for the offenses of conviction.

Moreover, precedent teaches that the interrelationship

between Jackson's age and the length of the prospective sentence

does not furnish an adequate legal reason upon which to ground a

departure. For example, in United States v. Doe, 921 F.2d 340

(1st Cir. 1990), we rejected virtually the same proposition on

closely comparable facts. There, the district court declined to

depart downward and, instead, imposed a 30-year sentence on a 54-

year-old man. On appeal, the defendant asserted that the

district court erred, inter alia, by "fail[ing] to consider

whether a `life sentence' is appropriate punishment for th[e]

crime." Id. at 347. We found no merit to this assertion. See

id. By like token, in Norflett, 922 F.2d at 54, we held that

there was nothing sufficiently unusual about a 34-year-old

defendant facing a sentence of approximately 17 years as to

authorize a downward departure. Our sister circuits regularly

have ruled to like effect. See, e.g., United States v. Goff, 20

F.3d 918, 921 (8th Cir. 1994) (remarking that the court has

8

consistently denied departures to healthy offenders in the age

group of a 67-year-old defendant); United States v. Madison, 990

F.2d 178, 183 (5th Cir.) (explaining that age has been virtually

eliminated as a mitigating sentencing factor), cert. dismissed,

114 S. Ct. 339 (1993); United States v. Anders, 956 F.2d 907, 912

(9th Cir. 1992) (rejecting age-based ground for departure in a

case involving a 46-year-old offender), cert. denied, 113 S. Ct.

1592 (1993); United States v. Daiagi, 892 F.2d 31, 33-34 (4th

Cir. 1989) (acknowledging that age has been largely eliminated as

a mitigating factor); cf. United States v. White, 945 F.2d 100,

101-02 (5th Cir. 1991) (holding that youthfulness per se is not a

sufficient reason for a downward departure).4

In sum, the departure that the lower court essayed

cannot be salvaged on the basis of either the defendant's age or

the interrelationship between the defendant's age and the

anticipated length of his sentence.

B. Excessiveness.

We now come to the crux of the district court's

reasoning: its apparent dissatisfaction with the severity of

sentencing options available within the GSR. The judge concluded

that, given appellant's age, a 27-year aggregate sentence would

be the functional equivalent of life imprisonment and, therefore,

too harsh to fit the crime. These conclusions led the judge, to

4To be sure, the guidelines permit consideration of the age
of a mature defendant as a ground for departure "when the
offender is elderly and infirm . . . ." U.S.S.G. 5H1.1

(emphasis in original). But Jackson is not elderly and the
district court received no evidence of any cognizable infirmity.

9

use his own words, to "depart out of a concern for the system of

justice." Though we appreciate the judge's humanitarian

instincts, and do not doubt his sincerity, we regard the stated

basis for departure as forbidden.

It is firmly settled that, absent specific

circumstances independently justifying a departure, a judge

cannot sentence outside a properly computed sentencing range

merely because he believes that the guidelines work too severe a

sanction in a particular case.5 See Norflett, 922 F.2d at 53

("That the district court thinks the GSR too harsh in a given

case does not by itself warrant a downward departure."); United

States v. Studley, 907 F.2d 254, 260 (1st Cir. 1990) ("Regardless

of how well founded, a belief by the sentencing judge that the

punishment set by the [Sentencing] Commission is too severe or

that the guidelines are too inflexible may not be judicial

grounds for departure."); Aguilar-Pena, 887 F.2d at 353

("Judicial dissatisfaction alone, no matter how steeped in real-

world wisdom, cannot be enough to trigger departures, lest the

entire system crumble.").

Norflett closely parallels the situation at hand.

There, in a case involving a career offender, the sentencing

court departed downward because it thought that sentencing the

defendant within the GSR would "constitute a miscarriage of

5By the same token, a judge is equally powerless to depart
solely because he believes that the guidelines provide
insufficient punishment. See United States v. Cox, 921 F.2d 772,

774 (8th Cir. 1990).

10

justice." Norflett, 922 F.2d at 52. We reversed, holding that

perceived excessiveness is not a viable basis for a downward

departure. See id. at 53. In the process, we cautioned that,

under the sentencing guidelines, judges are no longer free to act

upon their own views whenever they think that "the GSR [is]

incommensurate to the crime." Id. To the contrary, judges "must

subrogate personal views [about what sentences are too severe or

too lenient] to the Congress' sense of how best to achieve

uniformity." Id.

This monition has particular force in career offender

and armed career criminal cases, for Congress has very

specifically directed the Sentencing Commission to ensure that

the guidelines provide for severe incarcerative sentences in such

cases. See 28 U.S.C. 994(h) (1988) (directing courts in career

offender cases to impose sentences "at or near the maximum term

authorized [by law]"); 18 U.S.C. 924(e) (directing courts in

armed career criminal cases to impose a minimum sentence of

imprisonment for fifteen years without the possibility of

suspension, probation or parole). Such policy choices are for

Congress, not the courts, to make. And when, as now, the

legislative trumpet sounds clearly, courts are duty bound to

honor the clarion call. See Norflett, 922 F.2d at 53; United

States v. Williams, 891 F.2d 962, 964 (1st Cir. 1989); see also

United States v. Gonzalez-Lopez, 911 F.2d 542, 551 (11th Cir.

1990) (in considering a career offender case, "a court cannot

depart because it believes a sentence is excessive"), cert.

11

denied, 500 U.S. 933 (1991). While we are not without empathy

for our concurring brother's views, we are also mindful that the

courts' role "is as interpreters of the words chosen by Congress,

not as policymakers or enlargers of congressional intent."

United States v. Gibbens, F.3d , (1st Cir. 1994) [No.

93-2203 slip op. at 12]. So, too, the courts' role vis-a-vis the

Sentencing Commission, so long as the Commission acts within the

scope of its statutory authorization.

IV. CONCLUSION

We need go no further. The short of it is that, in the

instant case, neither the defendant's age, the prospective

duration of his immurement, nor any combination of these factors

are "mitigating circumstance[s] of a kind, or to a degree, not

adequately taken into consideration by the Sentencing Commission

in formulating the guidelines that should result in a sentence

different from that described." 18 U.S.C. 3553(b). It follows

inexorably that the circumstances relied upon by the district

court are inadequate to support a downward departure.

Consequently, the defendant's sentence must be vacated. The

district court, on remand, shall hold a new sentencing hearing,

at which it remains free to consider departure for other, legally

adequate reasons (if any are shown). See United States v.

Limberopoulos, F.3d , (1st Cir. 1994) [No. 92-1955,

slip op. at 3-4, 14].

Vacated and remanded for resentencing.

12

Concurring opinion follows

13

PETTINE, Senior District Judge, concurring. The
PETTINE, Senior District Judge, concurring

demands and strictures of the United States Sentencing Guidelines

("the guidelines"), and the limits that the guidelines place upon

federal district court judges, constrain me to write a separate

opinion in this case. I find the logic of Judge Selya's able

opinion to be unassailable, and I must agree with him that

"absent specific circumstances independently justifying a

departure, a judge cannot sentence outside a properly computed

sentencing range merely because he believes that the guidelines

work too severe a sanction in a particular case." Maj. op. at 9-

10. Although I cannot argue with my colleague's analysis of what

the guidelines require, I find myself taking great exception to

the mechanical sentencing that the guidelines force upon judges,

and I find it painful to adhere to this impersonal and cold-

blooded process.

In this case, the district court spontaneously departed

downward based on the belief that, for this forty year old

defendant, the twenty-seven year sentence required under the

guideline range was tantamount to a life sentence. At the

Sentencing Hearing, the court articulated its belief that "I just

happen to think that this is not the kind of thing the sentencing

commission may have had in mind." Tr., 6/25/93 at 34. However,

a review of the case law has revealed no precedent teaching that

the combination of age and a lengthy sentence, resulting in a de

facto life sentence, supports a downward departure. As Judge

Selya points out, the guidelines treat age as a discouraged

14

offender characteristic for purposes of a downward departure, and

the interrelationship between age and length of sentence has not

been considered adequate justification for a downward departure.

Furthermore, I have been unable to find any statutory language or

legislative history that indicates that Congress or the United

States Sentencing Guidelines Commission ("the Commission") has

ever considered this problem. Indeed, given the frequency with

which the guidelines result in sentences of numerous decades,

combined with the fact that forty year old defendants are not

uncommon, logic would seem to dictate that the members of the

Commission were unconcerned about de facto life sentences. In

any case, given the dearth of documentation as to the state of

mind of the Commissioners, the only conclusion that I can

reasonably reach is that it is impossible to determine what, if

anything, the Commission intended with regard to this issue.

Thus, I must reluctantly conclude that there is no way

for me to dissent from the majority opinion in this case and

still remain faithful to the ideal of intellectual honesty, an

ideal which must always be controlling in any judicial opinion

and which I have always treasured. Legal precedent that supports

Judge Boyle's downward departure is simply nonexistent. However,

my careful and painstaking reflection over the consequences of

the proper application of the guidelines in this case, as well as

my many experiences with the guidelines in the years since their

enactment, leave me overwhelmingly convinced that, except for

increased uniformity of sentences, the sentencing guidelines are

15

a failed experiment.

With regard to the results of the application of the

guidelines in this case, I wholeheartedly subscribe to Judge

Boyle's sentiment that a term of years amounting to a de facto

life sentence reaches beyond that which is appropriate for crimes

committed by the defendant in the instant case. As a like-minded

judge articulated in a factually similar case, "The majority

decision ignores what is truly obvious - that the portion of a

sentence which goes beyond the defendant's lifespan can serve no

retributive, deterrent, rehabilitative or any other proper

function of a prison sentence." United States v. Thornbrugh, 7

F.3d 1471, 1475 (10th Cir. 1993) (Bright, J., dissenting).

As far as the guidelines in general are concerned, I

believe that their greatest weakness lies in their mechanical

nature. "A system that fails to consider the offender's personal

characteristics places too great an emphasis on the harm caused

by the offender's act and too little emphasis on circumstances

that would serve to mitigate the punishment. The Commission

should have realized that it is a person who stands before the

bar to accept the punishment imposed by the court." Charles J.

Ogletree, Jr., The Death of Discretion? Reflecting on the

Federal Sentencing Guidelines, 101 Harv. L. Rev. 1938, 1953

(1988).

Unfortunately, when trial judges depart from the

guidelines, appellate courts are fettered in their review of the

litigation. As in this case, they have little or no choice but

16

to react to such departure in a rigid fashion. In distinction to

one commentator, I feel they are "[unable] to balance the distant

guidance of a bureaucracy against the detailed responsibility of

the individual sentencer." Daniel J. Freed, Federal Sentencing

in the Wake of the Guidelines: Unacceptable Limits on the

Discretion of Sentences, 101 Yale L. J. 1681, 1730 (1992).

Furthermore, I find the authority given by the guidelines to

United States Attorneys, enabling them to control the sentencing

process, to be entirely inappropriate and an invasion of the

historical role of judges as the final arbiters of justice.

Incredibly, we now have the inflexible prosecutorial mind which,

all too often, caters to public passion, dictating sentencing

parameters. "Discretionary decisions of Assistant U.S.

Attorneys, both as to charges and as to factual allegations, can

powerfully expand or limit the judge's ambit for sentencing."

Id. at 1723.

I have struggled with this case and feel compelled to

voice my feelings. My sense of justice and my twenty-eight years

of experience as a district court judge sitting in criminal

cases, preceded by five years as U.S. Attorney and thirteen years

as a state prosecutor, all lead me to believe that Judge Boyle's

actions in this case were absolutely correct. Judge Boyle acted

as a judge, drawing upon his life experience and his judicial

experiences, making his decision not simply by working the grid

provided by the guidelines, but by balancing the impact of the

law upon an individual human being, given that human being's

17

particularized circumstances, against the protection of society.

He recognized the face behind the law. He declined to function

merely as an automaton.

The mandates of the guidelines may have accomplished

uniformity of sentencing but they have done so by tragically

eroding the sacred function of a judge in the sentencing process.

This sacred function is a most complex, difficult, nebulous and

at times undefinable burden, and it must always be met in the

context of the unique setting at hand.

In considering this case, I have very seriously thought

about recusing myself from all future criminal cases. I have

found this decision an excruciatingly difficult one to make, but

I have chosen to continue to hear criminal cases. It is

established that a judge's view on the subject matter of

litigation does not require recusal. Laird v. Tatum, 409 U.S.

824 (1972). The very nature of my criticism and reaction to this

case is abundant recognition of my duty to follow the rules where

there is no room for intellectually honest dissent. Furthermore,

I believe passage of the pending Violent Crime Control and Law

Enforcement Act of 1993 may seriously increase this court's

criminal caseload. When I took senior status twelve years ago at

age seventy, I solemnly declared that I would carry a full

caseload. When the time comes that I can no longer do so as

vigorously and effectively as my younger esteemed colleagues, I

will at that point end my judicial service. Thus, because my

recusal would significantly burden my colleagues, and because I

18

recognize the controlling nature of the guidelines even while I

object to their substance, I choose to maintain a criminal

docket.

With the foregoing statement, I offer no dissent to

Judge Selya's well written opinion.

19