United States v. Snyder

UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT

No. 97-1233

UNITED STATES OF AMERICA,

Appellant,

v.

ERIC GRAY SNYDER,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Edward F. Harrington, U.S. District Judge]

Before

Selya, Circuit Judge,

Campbell, Senior Circuit Judge,

and Boudin, Circuit Judge.

James F. Lang, Assistant United States Attorney, with whom

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

United States.
Victoria L. Nadel for appellee.

Murray Kohn on brief for Massachusetts Association of

Criminal Defense Lawyers, amicus curiae.

February 12, 1998

SELYA, Circuit Judge. In this single-issue sentencing
SELYA, Circuit Judge.

appeal, the government implores us to set aside defendant-

appellee Eric Gray Snyder's sentence. The district court

predicated that sentence on a disparity between the sentence

mandated for the offense of conviction by the federal sentencing

guidelines and the sentence Snyder likely would have received had

state authorities prosecuted him. See United States v. Snyder,

954 F. Supp. 19, 22 (D. Mass. 1997) (memorandum explicating

reasons for sentence). We thus confront a question of novel

impression in this circuit: Is federal/state sentencing

disparity a permissible basis for a downward departure? We

answer that question in the negative. Consequently, Snyder must

be resentenced.

I. BACKGROUND
I. BACKGROUND

We touch lightly upon the facts of the case as they are

only obliquely relevant to the legal problem that this appeal

presents. On January 10, 1995, a known drug user, John Hawk,

told a Boston police officer, William Doogan, that Snyder had

robbed him and his paramour at gunpoint and stolen a number of

Valium tablets. Hawk further stated that Snyder, driving a black

Honda and accompanied by Frank Diaferio (a reputed drug dealer

known to Doogan), was headed toward Roslindale. Doogan knew that

Diaferio resided at 17 Murray Hill Road in Roslindale and he

immediately arranged for police surveillance of that locus. When

Snyder and Diaferio arrived in the black Honda, the officers

found a loaded .32 caliber pistol in a locked briefcase in the

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car's trunk. Doogan placed Snyder under arrest. During a search

at the station house, police officers recovered 26 Valium tablets

from Snyder's pants pocket.

Initially, Massachusetts authorities charged Snyder

under Mass. Gen. L. ch. 269, 10(a) (1990) with unlawfully

carrying a firearm, an offense punishable by a 2 -to-5-year

prison term. When a federal grand jury later returned an

indictment that charged Snyder with being a felon in possession

of a firearm in violation of 18 U.S.C. 922(g)(1) (1994),

Massachusetts dropped the state charge.

In due course, a federal trial jury found Snyder

guilty. The probation office thereafter prepared a presentence

investigation report (the PSI Report). The PSI Report indicated

that Snyder's extensive criminal history rendered him subject to

the sentencing enhancement provisions of the Armed Career

Criminal Act, 18 U.S.C. 924(e) (1994) (ACCA). Employing the

corresponding sentencing guideline, USSG 4B1.4 (Nov. 1995), the

PSI Report projected the guideline sentencing range (GSR) to be

262 to 327 months.

Judge Harrington conducted a three-day sentencing

proceeding. On October 9, 1996, Snyder's counsel and the

prosecutor sparred over Snyder's insistence that he was not

subject to the ACCA because certain of his prior convictions did

not qualify as predicate offenses thereunder. See 18 U.S.C.

921(a)(20) (1994) (delineating various exclusions from the

taxonomy of eligible predicate offenses). In the course of that

3

hearing, Judge Harrington expressed reservations about the

steepness of the projected sentencing range. Afterwards, he

issued a memorandum that noted his "grave concern" with the

"gross disparity" between the GSR and the punishment that Snyder

would have received had state authorities pursued and obtained a

conviction on the originally charged state offense. In that

memorandum, the judge made no bones about his disdain for "the

unfettered and unreviewable discretion of the United States

Attorney" to prosecute in federal court the "`local' offense of

carrying a firearm." He concluded by scheduling a further

hearing to address the issues "whether this disparity in

sentences and the de facto selective prosecution of the defendant

raise any constitutional concerns and whether the combination of

the above two issues justify [sic] a downward departure under

USSG 5K2.0."

At the resumed hearing, held on December 12, 1996,

Judge Harrington reiterated his belief that sentencing Snyder to

a 21-year prison term would constitute a "gross violation of the

principles of justice." Engaging in what some might consider

wishful thinking, the judge then predicted the demise of the

sentencing guidelines:

I said yesterday to the U.S. Attorney's
Office, this type of de facto, selective
prosecution continues. And when there is a
disparity of over 20 years for the same
offense, . . . the guidelines are going to be
dismantled because the federal judiciary will
no longer, no longer put up with it. It's
going to be dismantled.

Judge Harrington convened the third, and final,

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sentencing session on January 14, 1997. He ruled that Snyder

fell within the ambit of the ACCA and that USSG 4B1.4 therefore

applied. He computed the GSR to be 235 to 293 months.1 Judge

Harrington then departed downward pursuant to USSG 5K2.0 and

sentenced Snyder to an incarcerative term of 180 months (the

mandatory minimum under the ACCA). He premised the departure

squarely on the ground that the federal/state sentencing

disparity created by interleaved federal and state criminal

jurisdiction over Snyder's conduct "is contrary to the very

objective of and theory upon which the Guidelines are grounded

and therefore takes this case out of the heartland and makes it

atypical." Snyder, 954 F. Supp. at 22.2 The sentencing court's

rescript repeatedly condemns a system that cedes broad discretion

to prosecutors to determine who will be charged federally and,

thus, exposed to potentially harsher sentences when an

offender's conduct violates both federal and state criminal

1The difference between the GSR projected in the PSI Report
and that actually used stemmed from Judge Harrington's finding
not contested on appeal that the government had not proven that
Snyder committed an armed robbery. This finding shrunk Snyder's
base offense level from 34 to 33, see USSG 4B1.4(b)(3)(B), and

effected a commensurate decrease in the GSR.

2On appeal, Snyder attempts to divert our attention to
alternative rationales that arguably support the downward
departure. But Judge Harrington's decision makes no mention of
such factors. To the contrary, he expressly stated that "[t]o
this Court the issue raised is . . . one of disparity between the
sentences to be imposed." Snyder, 954 F. Supp. at 22. As our

analysis must focus on the reasons given by the district court in
support of a departure, we take no view of Snyder's post hoc
justifications. See United States v. Dethlefs, 123 F.3d 39, 43

(1st Cir. 1997); United States v. Jackson, 30 F.3d 198, 202 (1st

Cir. 1994).

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codes. See, e.g., id. at 21 (disparaging "disparate sentencing

treatment" brought about "by the exercise of absolute

prosecutorial discretion"); id. at 22 ("For where unbridled

power, unchecked by judicial scrutiny, can by fiat determine that

a certain person from among many similarly situated shall serve

such a disparate sentence for the same offense, then the balance

of governmental powers has become distorted and the liberty of

every individual is held hostage to the potential tyranny of the

Executive Branch.").

II. STANDARD OF REVIEW
II. STANDARD OF REVIEW

We deal here only with the government's sentencing

appeal.3 We review a district court's decision to depart from

the guideline sentencing range for abuse of discretion. See Koon

v. United States, 116 S. Ct. 2035, 2046-47 (1996). Our

examination proceeds stepwise. First, we ascertain whether the

guidelines permit the sentencing court's stated ground for

departure. If so, we examine the record to discern the adequacy

of the factual support that undergirds the departure. Finally,

if the departure rests on satisfactory record support, we assess

the reasonableness of its magnitude in light of the factual

predicate. See United States v. Dethlefs, 123 F.3d 39, 43-44

(1st Cir. 1997). Here, the government concedes that the

departure decision stands or falls on the first prong of the

3Snyder appealed his conviction and his classification as an
armed career criminal. We heretofore affirmed his conviction.
See United States v. Snyder, No. 97-1187 (1st Cir. Jan. 29, 1998)

(unpublished).

6

test.

Whether the guidelines countenance a particular ground

for departure is a question of law. See Koon, 116 S. Ct. at

2047. While this legal question technically falls within Koon's

unitary abuse-of-discretion rubric, "[a] district court by

definition abuses its discretion when it makes an error of law."

Id. We determine the existence vel non of legal error without

special deference to the sentencing court's views. See United

States v. Brennick, F.3d , (1st Cir. 1998) [No. 96-

1969, slip op. at 9].

III. ANALYSIS
III. ANALYSIS

We turn now to the validity of the district court's

stated ground for departure. The twin stanchions on which our

analytic framework rests are the generic departure guideline,

USSG 5K2.0 (a guideline that flows directly from the

congressional command embodied in 18 U.S.C. 3553(b) (1994)) and

the Court's opinion in Koon.

Section 5K2.0 permits a sentencing court to deviate

from the range indicated by an otherwise applicable guideline

computation if it 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

considering whether an appropriate "aggravating or mitigating

circumstance" exists, the court first must ask "[w]hat features

of th[e] case, potentially, take it outside the Guidelines'

`heartland' and make of it a special, or unusual, case[.]" Koon,

7

116 S. Ct. at 2045 (quoting United States v. Rivera, 994 F.2d

942, 949 (1st Cir. 1993)). Judge Harrington believed that he had

identified such a feature. In his view, the disparity between

the sentence that Snyder would have received if convicted under

Massachusetts law and the sentence mandated by USSG 4B1.4 was a

mitigating circumstance that brought Snyder's case outside the

heartland of armed career criminal cases and justified a downward

departure. See Snyder, 954 F. Supp. at 22. It falls to us to

test this conclusion.

In mounting this inquiry, we do not write on a pristine

page. Although the Sentencing Commission does not expressly

proscribe federal/state sentencing disparity departures, five

federal appellate courts have taken the measure of such

departures. All have held that federal/state sentencing

disparity is never a valid basis for a downward departure. See

United States v. Searcy, F.3d , (11th Cir. 1998) [1998

WL 10237, at *2]; United States v. Deitz, 991 F.2d 443, 447-48

(8th Cir. 1993); United States v. Haynes, 985 F.2d 65, 69-70 (2d

Cir. 1993); United States v. Sitton, 968 F.2d 947, 962 (9th Cir.

1992); United States v. Dockery, 965 F.2d 1112, 1117-18 (D.C.

Cir. 1992). This impressive array of authority resists ready

rejection.

Snyder harps on two facts: most of these decisions

predate Koon,4 and federal judges are less free under the Koon

4The lone exception is Searcy, a case decided after this

case was briefed and argued.

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regime to exorcise specific factors from the departure calculus.

See Koon, 116 S. Ct. at 2051; Dethlefs, 123 F.3d at 46. That

rejoinder is true as far as it goes but it does not go very

far. We are, of course, respectful of the change in emphasis

that Koon betokens. Still, "[n]otwithstanding that most

categorical interpretations are disfavored under the Koon Court's

regime, some boundaries are essential if the guidelines are not

to be emptied of all meaning." Dethlefs, 123 F.3d at 47. So

viewed, the pivotal question reduces to whether federal/state

disparity trenches upon such an essential boundary.

The letter of the sentencing guidelines is unhelpful in

this instance. Departures based on federal/state sentencing

disparity are not expressly permitted or forbidden in the

guidelines' text, nor are they explicitly encouraged or

discouraged. As a result, we must mull the "structure and theory

of both relevant individual guidelines and the Guidelines taken

as a whole," Koon, 116 S. Ct. at 2045 (quoting Rivera, 994 F.2d

at 949), in our effort to ascertain whether this factor

conceivably may be of a kind, or present to a degree,

inadequately considered by the Commission (and thus capable of

removing a particular case from the "heartland" sculpted by a

given guideline), see United States v. Clase-Espinal, 115 F.3d

1054, 1057 (1st Cir. 1997). Relevant federal statutes, the

guidelines themselves, their accompanying official commentary and

policy statements, and the case law inform our inquiry. See id.

So too does our expectation that such categorical bans will be

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relatively rare.

The Commission's enabling statute directs it to

"establish sentencing policies and practices for the Federal

criminal justice system that . . . avoid[] unwarranted sentencing

disparities among defendants with similar records who have been

found guilty of similar criminal conduct. . . ." 28 U.S.C.

991(b)(1)(B) (1994); see also USSG Ch.1, Pt.A, intro. comment. 3.

The legislative history makes it crystal clear that Congress's

allusion to "unwarranted sentencing disparities" reflected a

concern with variations among federal courts across the nation,

without reference to their state counterparts. See United States

v. Aguilar-Pena, 887 F.2d 347, 351-52 (1st Cir. 1989). In terms,

then, the guidelines seek to promote uniform sentencing among

federal courts in respect to federal crimes. See Deitz, 991 F.2d

at 447; Sitton, 968 F.2d at 962.

The trial judge sought to elongate this principle,

speculating that "it would only be logical that Congress would

not favor disparity throughout the criminal justice system in an

era of increased Federal-State cooperation in the investigation

and prosecution of crime." Snyder, 954 F. Supp. at 22. With

respect, we think that elongating the principle in this way would

destroy its structural integrity and, accordingly, that the trial

judge's surmise is utterly inconsistent with the guidelines'

theoretical underpinnings.

If the guidelines' goal is to promote uniformity among

federal courts when imposing sentences for federal crimes, then

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departures aimed at alleviating federal/state sentencing

disparity are flatly incompatible with it. Endeavoring to make a

federal sentence more closely approximate that which a state

court might impose for similar criminal activity would recreate

the location-based sentencing swings that Congress sought to

minimize when it opted for a guideline paradigm.5 See Searcy,

F.3d at [1998 WL 10237, at *2]; Deitz, 991 F.2d at 447-

48; see also Aguilar-Pena, 887 F.2d at 352 (warning that

departures cannot be allowed to subvert Congress's "ardent desire

to dispense with inequalities based on localized sentencing

responses").

The short of it is that the guidelines did not sprout

in a vacuum. Congress and the Sentencing Commission erected the

present sentencing structure against the skyline of an extant

criminal justice system, see Haynes, 985 F.2d at 69; Dockery, 965

F.2d at 1117; see also Stephen Breyer, The Federal Sentencing

5One Commission member illustrated the swings that occurred
in the pre-guidelines era by recounting the following findings:

The region in which the defendant is
convicted is likely to change the length of
time served from approximately six months
more if one is sentenced in the South to
twelve months less if one is sentenced in
central California. . . . [B]lack [bank
robbery] defendants convicted . . . in the
South are likely to actually serve
approximately thirteen months longer than
similarly situated bank robbers convicted . .
. in other regions.

Hearings on Sentencing Guidelines Before the Subcomm. on Criminal
Justice of the House Comm. on the Judiciary, 100th Cong., 1st
Sess. 554, 676-77 (1987) (testimony of Commissioner Ilene H.
Nagel).

11

Guidelines and the Key Compromises Upon Which They Rest, 17

Hofstra L. Rev. 1 (1988), and that system includes overlapping

state and federal criminal jurisdiction. The fact that the

states impose different and varied sentences for criminal conduct

that may also transgress federal law is about as obvious as a

hippopotamus at a tea party. It is implausible to suppose that

the Commission overlooked this large reality and therefore failed

to account for it in formulating the guidelines.6 See Dethlefs,

123 F.3d at 47; Clase-Espinal, 115 F.3d at 1057.

We add, moreover, that disparity between federal and

state sentences in career offender cases is hardly serendipitous.

Congress crafted the ACCA on the central premise that armed

career criminals were being treated too gently by state courts

coddled, some might say and that these defendants ought to

receive much stiffer sentences. See United States v. Jackson, 30

F.3d 199, 204 (1st Cir. 1994); see also 18 U.S.C. 924(e); H.R.

Rep. No. 98-1073, at 5 (1984), reprinted in 1984 U.S.C.C.A.N.

3661, 3665; USSG 4B1.4, comment. (backg'd.). For these

defendants, significant disparity between sentences at the

federal and state levels is the rule, not the exception. Hence,

if Snyder is entitled to a downward departure on this basis, then

virtually every defendant subject to the ACCA is similarly

entitled. See Dockery, 965 F.2d at 1118.

6We think it unremarkable that the Commission has not
expressly forbidden federal/state disparity departures. Given
that the guidelines were never intended to foster parity between
federal and state defendants, Commission commentary on the
subject would be supererogatory.

12

We are equally unimpressed with the district court's

attempt to hang its finding of atypicality on an aversion to

federal prosecutors' discretionary power to target defendants

under federal law. See Snyder, 954 F. Supp. at 22. Different

branches of government have different responsibilities, and the

power to determine when to prosecute and when to refrain is,

within broad limits, a prerogative of the Executive Branch.

Accordingly, it is a "bedrock principle of our system of criminal

justice" that a federal judge may not interfere with the

government's prosecutorial decisions solely to vindicate his

subjective view of the wisdom of a given enforcement strategy.

United States v. Stokes, 124 F.3d 39, 46 (1st Cir. 1997). It

follows inexorably that the government's lawful selection of

Snyder for federal prosecution has no relevance to the sentencing

inquiry.7

For these reasons, we hold that federal/state

sentencing disparity is not a feature that can justify a

departure. Such departures would contradict hopelessly the

guidelines' structure and theory as well as impinge impermissibly

upon the Executive Branch's discretion to prosecute defendants

under federal law. See Dockery, 965 F.2d 1118.

We add a coda. The continuing federalization of

criminal law increases the frequency with which federal/state

7We find no record evidence of an unconstitutional exercise
of prosecutorial authority in this case. We note, moreover,
that Judge Harrington himself ruled in an unpublished order dated
December 27, 1997, that Snyder had failed to make out a prima
facie case of selective prosecution.

13

sentencing disparities occur, see generally Steven D. Clymer,

Unequal Justice: The Federalization of Criminal Law, 70 S. Cal.

L. Rev. 643 (1997), and we are not entirely unsympathetic to

Judge Harrington's concerns about this trend. Still, judicial

dissatisfaction with a particular aspect of the guidelines, "no

matter how steeped in real-world wisdom, cannot be enough to

trigger departures." Aguilar-Pena, 887 F.2d at 353; see also

United States v. Muniz, 49 F.3d 36, 43 (1st Cir. 1995); United

States v. Norflett, 922 F.2d 50, 54 (1st Cir. 1990). As long as

federal and state sovereigns share jurisdiction over criminal

matters, prosecutors will be able to expose selected defendants

to elevated sentences. One can envision models designed to

eliminate or minimize this circumstance, see generally Sara Sun

Beale, Too Many and Yet Too Few: New Principles to Define the

Proper Limits for Federal Criminal Jurisdiction, 46 Hastings L.J.

979 (1995), but these models reflect structure and theory quite

different from that embodied in the federal sentencing

guidelines. Thus, the case for them must be made in Congress,

not in the courts.

IV. CONCLUSION
IV. CONCLUSION

In sum, federal/state sentencing disparity is not "a

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 sentence

different from that described." 18 U.S.C. 3553(b). Hence, we

vacate Snyder's sentence and remand for resentencing.

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We close by addressing one further point. In our

companion opinion, see supra note 3, we approved for the time

being the district court's adherence to United States v.

Estrella, 104 F.3d 3 (1st Cir. 1997), and rejected Snyder's

contention that 18 U.S.C. 921(a)(20) prevents his prior

Massachusetts convictions from bringing him within the fold of

the ACCA. We noted, however, that the Supreme Court recently

granted certiorari to review this court's unpublished opinion in

Caron v. United States, Nos. 96-2338, 2339 (1st Cir. May 9,

1997), cert. granted, 66 U.S.L.W. 3444 (U.S. Jan. 9, 1998) (No.

97-6270), and prophesied that the Court's review of Caron will

encompass the relevant aspects of Estrella. Consequently, if the

defendant consents, the district court may choose to delay

resentencing pending the resolution of Caron. Elsewise, the

district court should impose sentence consistent herewith,

applying Estrella, but reserve to Snyder the right to seek

reconsideration should the Caron Court's decision materially

affect the sentence imposed.

Vacated and remanded.
Vacated and remanded.

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