United States v. Morrison

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 94-1288

UNITED STATES,

Appellee,

v.

ROBERT A. MORRISON,

Defendant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Rya W. Zobel, U.S. District Judge]

[Lawrence P. Cohen, U.S. Magistrate Judge]

Before

Cyr and Stahl, Circuit Judges,

and DiClerico,* District Judge.

Owen S. Walker, Federal Defender Office, for appellant.

David J. Apfel, Assistant United States Attorney, with whom

Donald K. Stern, United States Attorney, was on brief for

appellee.

February 3, 1995

* Of the District of New Hampshire, sitting by designation.

DICLERICO, District Judge. Defendant-appellant Robert
DICLERICO, District Judge.

A. Morrison challenges the sentence imposed following his guilty

plea to robbery charges. Morrison does not dispute that the

sentence is within the Guideline Sentencing Range ("GSR")

required under the United States Sentencing Guidelines

("Guidelines" or "U.S.S.G."). He claims, however, that the court

mistakenly believed it lacked authority to depart below the GSR

and seeks a remand for a new sentencing hearing. We dismiss the

appeal for lack of appellate jurisdiction.

I
I

BACKGROUND
BACKGROUND

On December 2, 1993, Morrison pled guilty to a one-

count indictment charging him with robbery of Somerset Savings

Bank in Somerville, Massachusetts, in violation of 18 U.S.C.

2113(a). This was not Morrison's first offense. Morrison began

his criminal career at age seventeen with a shoplifting charge

that was dismissed upon payment of restitution. Soon thereafter

he was implicated in two minor cases that terminated in

dismissals. Prior to the Somerville robbery, his criminal record

included (1) a 1980 conviction for masked armed robbery of a

Bedford, Massachusetts, bank; (2) a 1982 conviction for a

December 1981 larceny; (3) a 1983 conviction for possession of

stolen mail; (4) a 1992 larceny-from-the-person conviction

stemming from a 1991 holdup of a CVS drugstore in Yarmouth,

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Massachusetts; and (5) a 1992 charge1 that he robbed a Mobil gas

station and mini-mart in New Hampshire.2 In addition, following

the Somerville robbery, Morrison pled guilty to a felon-in-

possession charge.3 Morrison has a history of alcohol abuse and

depression reaching back as far as his first criminal offense.

The presentence report ("PSR") concluded that Morrison,

by reason of his previous convictions for the 1980 armed robbery

and the 1991 larceny from the person, was a career offender.4

The PSR calculated an offense level of 32, minus three points for

acceptance of responsibility, for a total offense level of 29;

and a criminal history category of VI. A GSR of 151-188 months

resulted. Neither party objected to the PSR findings.

On February 16, 1994, Morrison filed a "Sentencing

Memorandum and Request for Downward Departure" ("sentencing

memorandum") seeking relief from the GSR pursuant to U.S.S.G.

1 At the time of sentencing, the charge was pending.

2 During the period between 1980 and 1992, Morrison spent
significant time in prison. He was initially given probation for
the 1980 masked armed robbery conviction. That probation was
revoked and Morrison was incarcerated from December 16, 1983,
until he was paroled on December 11, 1984. His parole terminated
in December 1991. He also was imprisoned from January 10, 1992,
to July 27, 1992, for the larceny-from-the-person conviction.

3 Morrison allegedly robbed a convenience store in Spokane,
Washington, on September 11, 1992, just three days after the
Somerville robbery. After he was arrested, the police found a
sawed-off .22 caliber Ruger rifle and a box of .22 caliber
bullets in his hotel room. He was charged as a felon in
possession.

4 See 28 U.S.C. 994(h) (defendant is career offender if, inter

alia, convicted of crime of violence after having been convicted

of two or more felonies which were crimes of violence); see also

U.S.S.G 4B1.1 (same).

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4A1.35 and Ch. I, Pt. A, intro. comment. (4)(b)6. Morrison

5 Morrison cited to the portion of the Guidelines section that
states:

There may be cases where the court
concludes that a defendant's criminal
history category significantly over-
represents the seriousness of a
defendant's criminal history or the
likelihood that the defendant will commit
further crimes. An example might include
the case of a defendant with two minor
misdemeanor convictions close to ten
years prior to the instant offense and no
other evidence of prior criminal behavior
in the intervening period. The court may
conclude that the defendant's criminal
history was significantly less than that
of most defendants in the same criminal
history category (Category II), and
therefore consider a downward departure
from the guidelines.

U.S.S.G. 4A1.3.

6 The Guidelines introduction notes that

[t]he sentencing statute permits a
court to depart from a guideline-
specified sentence only when it finds "an
aggravating or mitigating circumstance of
a kind, or to a degree, not adequately
taken in to consideration by the
Sentencing Commission in formulating the
guidelines that should result in a
sentence different from that described."
The Commission intends the sentencing
courts to treat each guideline as carving
out a "heartland," a set of typical cases
embodying the conduct that each guideline
describes. 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.

U.S.S.G. Ch. I, Pt A., intro. comment. (4)(b) (quoting 18 U.S.C.
3553(b)).

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took the position that U.S.S.G. 4A1.3 authorizes sentencing

courts to consider departures in limited circumstances where

"reliable information indicates that the history category does

not adequately reflect the seriousness of the defendant's

criminal history." See U.S.S.G. 4A1.3. Morrison argued that

the criminal history category calculated in the PSR significantly

overrepresented his criminal history and the likelihood that he

would commit further crimes because he was not a typical career

offender. The First Circuit has not yet determined whether

departures are prohibited in career offender cases. See United

States v. Norflett, 922 F.2d 50, 54 n.5 (1st Cir. 1990).

To establish that the circumstances of his case were

atypical, Morrison argued that the Somerville robbery (the crime

of conviction) and the 1991 larceny from the person (his second

predicate offense) should be merged because they were symptoms of

a "downward spiral" in his life manifested by heavy drinking and

suicidal thoughts that began following the loss of his job in

1990. Morrison noted that following a year of imprisonment in

1984, he had "become a productive member of society, attending

college, working in Colorado, and then working at MCI

Communications." However, by summer 1991, he had left MCI, was

"deeply disturbed" and had been hospitalized on several occasions

for his drinking problems. Morrison listed several events that

contributed to his "downward spiral," including two suicide

attempts for which he was hospitalized during the summer of 1991;

two weeks spent in detoxification in September 1991;

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hospitalization for depression and alcohol problems from October

25 to November 15, 1991; the December 11, 1991, robbery of the

Yarmouth CVS and the sentence served for the offense; a

subsequent move to Canada where he drank heavily and again

attempted suicide; hospitalization in Nashua, New Hampshire, on

September 2, 1992; a gas station robbery on September 7, 1992,

for which charges were pending against him; and the September 8,

1992, Somerville robbery. Morrison also set forth how, following

the Somerville robbery, he obtained a book on how to commit

suicide, flew to Spokane, Washington, and purchased a rifle with

the intention of killing himself.

Morrison attached a psychological evaluation by Robert

S. Ebert to his sentencing memorandum. In his evaluation, Dr.

Ebert diagnosed Morrison as suffering from "longstanding and

chronic depression." According to Dr. Ebert, "Morrison's most

recent criminal activities (as well as many of those in the past)

[apparently were] carried out in the context of a chronic

depression and severe alcoholism."

To support his contention that the court had authority

to depart in career offender cases, Morrison cited several other

circuit opinions addressing the issue and holding that the policy

statement found in U.S.S.G. 4A1.3 permits downward departure.

See, e.g., United States v. Bowser, 941 F.2d 1019 (10th Cir,

1991); United States v. Pinckney, 938 F.2d 519 (4th Cir. 1991);

United States v. Lawrence, 916 F.2d 553, 554-55 (9th Cir. 1990);

United States v. Brown, 903 F.2d 540 (8th Cir. 1990).

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At his sentencing hearing, Morrison again argued the

facts and circumstances he contended made him an atypical career

offender. The government responded by arguing that the facts

presented did not amount to an atypical case. The government

noted that under U.S.S.G 5H1.4 and 5K2.13 mental defects

induced by alcohol or drinking problems should not serve as the

basis for a finding of atypicality.

The district court refused to grant Morrison's request

for a downward departure, stating:

From what I see, there were some four
alcohol-related hospital admissions
before '91. There were some six hospital
admissions related to alcohol and
depression after 1991. There were a
number of criminal convictions before,
and then there was the series of three or
four that occurred in the three- or four-
month space at the end of 1992.

I have some difficulty seeing how this
case is a case for a departure, as I
understand the criteria of Rivera. I can

tell you, Mr. Walker, if I felt that I
had the authority to depart, I would.
And I think the sentence I would impose
would be in the range of six years. I do
not believe that I have the authority on

the facts of this case to depart.

And I note, for example, in the list of
cases you gave me, two of them involve
joint motions by the government and the
defendant. As you well know, it is my
view that the government has far greater
authority in sentencing matters these
days than does the Court, and this simply
proves it. The government isn't moving
to depart in this case. I do not think
the case fits within Rivera and,

accordingly, will not depart.

This appeal followed.

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II
II

THE DEPARTURE DECISION
THE DEPARTURE DECISION

Morrison argues that the district court erred in

finding that it was precluded as a matter of law from granting a

downward departure. He asserts that the district court failed to

impose a shorter sentence due to its mistaken belief that it did

not have the authority to depart. In support, Morrison directs

us to a single statement made by the court when rendering its

decision: "if I felt I had the authority to depart, I would."

The government responds that the district court's decision not to

depart does not reflect an incorrect application of the

Guidelines and is, therefore, unreviewable. The government

contends that the statement made by the district court, when read

in context, merely shows a "generalized expression of

apprehension regarding the Guidelines, not specific judicial

findings regarding the authority to depart in this particular

case." We agree.

The Sentencing Reform Act specifically defines when a

defendant can seek appellate review of a sentence. A defendant

may appeal a sentence if it was imposed as a result of an

incorrect application of the Guidelines. 18 U.S.C. 3742(a)(2).

"[A] refusal to depart cannot constitute an `incorrect

application' of the Guidelines." United States v. Tucker, 892

F.2d 8, 10 (1st Cir. 1989). Consequently, no appeal lies from a

discretionary refusal to depart. United States v. Pierro, 32

F.3d 611, 619 (1st Cir. 1994) (citing United States v. Tardiff,

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969 F.2d 1283, 1290 (1st Cir. 1992); United States v. Amparo, 961

F.2d 288, 293 (1st Cir.) cert. denied, 113 S. Ct. 224, (1992);

United States v. Hilton, 946 F.2d 955, 957 (1st Cir. 1991);

United States v. Romolo, 937 F.2d 20, 22 (1st Cir. 1991)).

Appellate jurisdiction does attach, however, where the decision

not to depart is based on the sentencing court's assessment of

its lack of authority or power to depart. Id.; Amparo, 961 F.2d

at 292.

The difference between the rule and the exception has

been described as follows:

If the judge sets differential
factfinding and evaluative judgments to
one side, and says, in effect, "this
circumstance of which you speak, even if
it exists, does not constitute a legally
sufficient basis for departure," then the
correctness of that quintessentially
legal determination may be tested on
appeal. But if the judge says, in
effect, either that "this circumstance of
which you speak has not been shown to
exist in this case," or, alternatively,
that "while this circumstance of which
you speak might exist and might
constitute a legally cognizable basis for
a departure in a theoretical sense, it
does not render this particular case
sufficiently unusual to warrant
departing," then, in either such event,
no appeal lies.

Pierro, 32 F.3d at 619. Thus, an appeal lies if the departure

decision is based on an assessment that the sentencing court is

powerless to depart on the grounds alleged by the proponent, but

not if the court simply declines to exercise its discretionary

power to depart.

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When determining whether the sentencing court merely

refused to exercise its discretionary power to depart, we

consider the totality of the record and the sentencing court's

actions as reflected therein. See United States v. LeBlanc, 24

F.3d 340, 348 (1st Cir.), cert. denied, 115 S. Ct. 250 (1994).

We do not consider any single statement in a vacuum. United

States v. DeCosta, 37 F.3d 5, 8 (1st Cir. 1994); see LeBlanc, 24

F.3d at 348. Rather, it is necessary to view the statement in

the context of the hearing as a whole and the court's action as

reflected by the record. See DeCosta, 37 F.3d at 8.

Prior to sentencing, a court considering departure must

ask:

"1) What features of this case,
potentially, take it outside the
Guidelines' 'heartland' and make of it a
special, or unusual, case?

2) Has the [Sentencing] Commission
forbidden departures based on those
features?

3) If not, has the [Sentencing]
Commission encouraged departures based on
those features?

4) If not, has the [Sentencing]
Commission discouraged departures based
on those features?"

United States v. De Masi, No. 92-2062, slip. op. at 41-42 (1st

Cir. Oct 26, 1994) (quoting United States v. Rivera, 994 F.2d

942, 949 (1st Cir. 1993)). "A court's subsequent analysis varies

depending on the category in which the feature justifying the

departure falls." Id. at 42. If the reasons presented for the

departure fall into the discouraged category, those reasons

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generally will not suffice to take the case out of the

"heartland." Rivera, 994 F.2d at 949. The sentencing court must

look to the Guidelines to determine if a certain feature is

discouraged. De Masi, No. 92-2062, slip. op. at 43.

Morrison argued to the district court that he is an

atypical career offender because he was suffering from an

extended period of severe depression and alcohol abuse at the

time the second predicate offense and crime of conviction

occurred. Therefore, according to Morrison, the two crimes were

sufficiently connected or related to each other to qualify as

part of the "same course of conduct." See U.S.S.G. 1B1.3, app.

note 9(b).7 The record reflects that the district court found

7 U.S.S.G. 1B1.3(b) states:

Offenses that do not qualify as part of a
common scheme or plan may nonetheless
qualify as part of the same course of
conduct if they are sufficiently
connected or related to each other as to
warrant the conclusion that they are part
of a single episode, spree, or ongoing
series of offenses. Factors that are
appropriate to the determination of
whether offenses are sufficiently
connected or related to each other to be
considered as part of the same course of
conduct include the degree of similarity
of the offenses, the regularity
(repetitions) of the offenses, and the
time interval between the offenses. . . .
The nature of the offenses may also be a
relevant consideration.

U.S.S.G. 1B1.3(b), comment. 9(b). We have previously held that
robberies occurring on different days and at different places,
linked only by drug dependency, are not part of the same course
of conduct. United States v. Williams, 891 F.2d 962, 966 (1st

Cir. 1989). "[The Guidelines] specifically stipulated that
robbery was to be regarded as a crime oriented toward single

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that the features of the case did not make it "special" or

"unusual" and, therefore, never reached the questions of whether

the offenses could be merged and whether courts have authority to

depart in career offender cases. Several factors lead to this

conclusion.

First, in announcing its decision the court made

repeated references to Rivera that indicated its familiarity with

that decision. Rivera sets forth the power of a sentencing court

to depart from the GSR where circumstances warrant departure.

See 994 F.2d at 949. Moreover, Rivera makes clear that it is the

role of the sentencing court to make determinations about the

"ordinariness" or "unusualness" of a particular case. Id. at

947. We have previously noted that a sentencing court's stated

familiarity with Rivera is an indicium that the court was aware

of its authority to depart downwards. United States v. O'Connor,

28 F.3d 218, 222 (1st Cir. 1994).

Second, at the sentencing hearing the government never

argued that the court was without authority to depart. Rather,

it was the government's contention that the facts of the case

presented no basis for exercising that authority. The government

outlined the reasons why Morrison's situation was not atypical

and did not take him outside the heartland.

episodes of criminal behavior, and therefore not to be treated as
a continuing offense." Id. (citing U.S.S.G. Ch. 3, Pt. D, intro.

comment.). Because we conclude that the district court made a
discretionary finding of no atypicality, there is no occasion to
review whether the rule enunciated in Williams applies to

Morrison's circumstances.

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Third, the court stated: "I do not believe that I have

the authority on the facts of this case to depart." (emphasis

added). This statement, coming on the heels of the government's

argument that Morrison's situation was not atypical, and coupled

with the court's references to Rivera, indicates that the court

determined that the particular circumstances of this case did not

warrant departure under the criteria outlined in Rivera. In this

vein, the court pointedly used the phrase I "will not depart,"

clearly evidencing the discretionary nature of its decision.

Based on the facts presented to it in the sentencing

memorandum and at the sentencing hearing, the district court

found that Morrison's depression and alcohol abuse, and the

"downward spiral" resulting therefrom, did not present a

situation sufficiently atypical from that of most career

offenders to permit characterization as outside the heartland of

career offender cases. The court simply was not persuaded to

depart from the Guidelines. Nor is there anything in the record

to indicate that the court ever reached the question of whether a

sentencing court has the authority to depart downward in career

offender cases where the court finds that the defendant is not a

typical career offender.

Even assuming, however, that the statement seized upon

by the defendant was considered ambiguous, this alone would not

suffice to make the decision not to depart from the GSR either

appealable or appropriate for remand. See United States v.

Romero, 32 F.3d 641, 654 (1st Cir. 1994) (noting that although

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the sentencing court's language was "not a model of clarity," it

was sufficiently clear from record that court understood its

ability to depart but made a factual and discretionary

determination that departure was not warranted). Difficulty

commonly arises where a sentencing court uses terse phrases that

it cannot or is without authority to depart from the GSR.

DeCosta, 37 F.3d at 8. While a sentencing court is not required

to state its reasons for refusing to depart, failure to do so may

result in a perceived ambiguity. See id. Thus, we have

suggested that a sentencing court state, where appropriate, "that

it has considered the mitigating factors urged but does not find

them sufficiently unusual to warrant a departure in the case at

hand." Id.8

If a sentencing court neglects to use such language,

however, the sentencing decision is not necessarily ripe for

remand or review. Sentencing courts have had abundant

opportunity to become experienced with the Guidelines and

familiar with their authority to make discretionary decisions

regarding whether to depart. See DeCosta, 37 F.3d at 8 ("if a

district court desired to depart but thought this course

forbidden by explicit guideline language, one would expect the

court to cast its refusal in these terms"); see also United

States v. Rodr guez, 30 F.3d 1318, 1319 (10th Cir. 1994) ("[W]e

no longer are willing to assume that a judge's ambiguous language

8 Due to the recurrent nature of this problem, we once again
strongly suggest that sentencing courts use this language, or
language of identical import, to avoid ambiguities.

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means that the judge erroneously concluded that he or she lacked

authority to downward depart.").

There are at least two credible appellate approaches to

a ruling wherein the sentencing court has failed to state with

clarity its determination that a departure would be

impermissible, as a matter of law, on the grounds asserted. The

reviewing court may remand for a clear ruling, see, e.g., United

States v. Mummert, 34 F.3d 201, 205 (3d Cir. 1994), or dismiss

the appeal in reliance on a presumption that ambiguity alone

affords an insufficient basis for concluding that the sentencing

court misapprehended its departure authority. See Rodr guez, 30

F.3d at 1319; cf. DeCosta, 37 F.3d at 8.

Notwithstanding the problematic language in the

district court's ruling in the instant case, however, neither

option is warranted here. Rather, viewed in harmony with its

context, the departure reflects no misapprehension on the part of

the district court as to its departure power, but simply its

decision not to exercise that power in the present case.

II
II

CONCLUSION
CONCLUSION

Because we are without jurisdiction to review the
Because we are without jurisdiction to review the

departure decision, the appeal is dismissed.
departure decision, the appeal is dismissed

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