United States Court of Appeals
For the First Circuit
No. 02-2099
UNITED STATES OF AMERICA,
Appellee,
v.
SYLVESTER GENDRAW, a/k/a SAMPSON,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Joseph L. Tauro, U.S. District Judge]
Before
Howard, Circuit Judge,
and Bownes and R. Arnold,* Senior Circuit Judges.
Heidi B. Shore for appellant.
John A. Wortmann, Jr., Assistant United States Attorney, with
whom Michael J. Sullivan, United States Attorney, was on brief for
the United States.
July 28, 2003
*
Of the United States Court of Appeals for the Eighth Circuit,
sitting by designation.
R. ARNOLD, Senior Circuit Judge. As part of a plea
agreement, Sylvester Gendraw pleaded guilty to two counts of
possession of cocaine base with intent to distribute, in violation
of 21 U.S.C. § 841(a)(1). Mr. Gendraw and the United States agreed
that his base offense level was 32, that the District Court could
give a three-level reduction for acceptance of responsibility, and
that Mr. Gendraw qualified as a career offender under United States
Sentencing Guidelines §§ 4B1.1 and 4B1.2. The defendant, however,
reserved the right to request a downward departure under § 4A1.3 of
the Guidelines, on the basis that his designation as a career
offender overstated his criminal history and the threat of
recidivism. The District Court accepted his plea, rejected his
motion for a downward departure, and sentenced Mr. Gendraw to 151
months’ imprisonment. Defendant is before this Court appealing the
District Court’s conclusion that it lacked the authority to grant
a downward departure in this case. We affirm. The facts of this
case do not come close to placing it outside the heartland of the
Guidelines.
I.
Mr. Gendraw has a long history of convictions in both
state and federal courts dating from 1983 to 1995. His
convictions, in chronological order, are: two counts of assault
and battery, one count of assault and battery (committed while on
probation), one count of assault and battery with a dangerous
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weapon (committed while on probation), larceny from a person and
threat to commit a crime (committed while on probation), larceny
from a person and assault and battery (committed while on
probation), attempt to commit larceny from a person, armed home
invasion and threats with intent to extort, witness intimidation,
and possession of marijuana. The Pre-Sentence Investigatory Report
indicated that he has also been arrested some eighteen additional
times on various charges and has received seven disciplinary
reports while incarcerated by the Commonwealth of Massachusetts.
To say the least, Mr. Gendraw is not new to the criminal justice
system.
It is undisputed that Mr. Gendraw qualifies as a career
criminal on the basis of just three of these convictions: attempt
to commit larceny from a person, armed home invasion and threats
with intent to extort, and witness intimidation. His sole argument
before the District Court was that he should receive a downward
departure on the ground that his designation as a career criminal
overstates his criminal history. He argued, and still maintains,
that the less severe nature of his qualifying crimes and their
remoteness in time provide sufficient grounds for a downward
departure. The District Court denied the motion because the judge
felt that he lacked the authority to grant it.
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II.
Mr. Gendraw asks this Court to hold that the District
Court erred in concluding that it lacked the authority to depart
downward. We need not reach this question, however, because we
conclude that even if the District Court was authorized to grant
downward departures based upon the “smallness” of qualifying
offenses and their age, Mr. Gendraw simply would not qualify.
As a general rule, this Court has no authority to review
District Court decisions to deny a downward departure. When the
District Court’s conclusion is that it lacks the legal authority to
depart, however, we will review this decision de novo. United
States v. Snyder, 136 F.3d 65, 67 (1st Cir. 1998). Although
departure decisions should be made by the sentencing judge in the
first instance, see United States v. Hardy, 99 F.3d 1242, 1250 (1st
Cir. 1996), where the record provides no basis for departure on any
ground, we are not required to remand to the District Court. See
United States v. Rushby, 936 F.2d 41, 42 (1st Cir. 1991).
This Court has held that § 4A1.3 departures are available
to career offenders in some cases. United States v. Lindia, 82
F.3d 1154, 1165 (1st Cir. 1996). To be entitled to such a
departure, however, the defendant must demonstrate that his case is
so exceptional that it is set apart from typical cases. See United
States v. Perez, 160 F.3d 87, 90 (1st Cir. 1998) (en banc) (per
curiam) (“Under Koon, if an encouraged factor (e.g., criminal
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history under § 4A1.3) is already taken into account by a Guideline
(as is criminal history in the career offender guideline), ‘the
court should depart only if the factor is present to an exceptional
degree or in some other way makes the case different from the
ordinary case where the factor is present.’ ”); see also United
States v. Pearce, 191 F.3d 488, 497 (4th Cir. 1991) (recognizing
that § 4A1.3 departures for career offenders “are reserved for the
truly unusual case”).
According to these cases, then, Mr. Gendraw would be
eligible for a departure only if he could prove that his criminal
background was so over-represented by his designation as a career
criminal as to put him beyond the normal case in which the career-
offender classification comes into play. He cannot make such a
showing. A defendant is a career offender:
if (1) the defendant was at least eighteen
years old at the time of the instant offense,
(2) the instant offense of conviction is a
felony that is either a crime of violence or a
controlled substance offense, and (3) the
defendant has at least two prior felony
convictions of either a crime of violence or a
controlled substance offense.
U.S.S.G. § 4B1.1. A felony qualifies as a crime of violence if the
permissible term of imprisonment exceeds one year, and the crime
“has as an element the use, attempted use or threatened use of
physical force against another” or involves burglary of a dwelling,
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arson, extortion, the use of explosives, or otherwise presents a
“serious potential risk of physical injury to another.” U.S.S.G.
§ 4B1.2.
All parties agree that Mr. Gendraw’s convictions for
armed home invasion and witness intimidation qualify as crimes of
violence, as does his conviction for attempt to commit larceny from
a person. Mr. Gendraw argues, however, that because these
convictions did not involve egregious behavior and because they
occurred over ten years ago, his designation as a career offender
overstates his criminal history and therefore exaggerates his
danger of recidivism. We do not find this argument persuasive.
Even assuming that these qualifying convictions, when
considered alone, are so trivial and remote as to render Mr.
Gendraw’s case exceptional, Mr. Gendraw’s argument faces an
insurmountable hurdle because these are not his only convictions.
Mr. Gendraw has been convicted of six other crimes, many of which
were committed while he was on probation. It is true that many of
these convictions would not qualify him as a career offender and
that we do not consider them in placing him in this category, but
we cannot disregard them when trying to decide whether his
designation so overstates his criminal history as to qualify him
for a downward departure. He has been given the benefit of the
doubt many times, yet he has wholly failed to reform himself.
Given that Mr. Gendraw has so many convictions, there is simply no
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merit to his assertion that his designation as a career offender
overstates his criminal history. We observe, in addition, that
defendant’s remoteness-in-time argument is weak. A considerable
amount of time did pass between the defendant’s last offense and
his commission of the crime for which he is now being prosecuted,
but the defendant was imprisoned during much of that time, with no
opportunity to commit new crimes against the public.
In light of this conclusion, remanding this case would be
pointless, as any decision by the District Court granting a
downward departure would have to be reversed.1 The District
Court’s refusal to grant Mr. Gendraw a downward departure is,
therefore, affirmed.
1
At oral argument, the United States asked this Court to
address the question of whether any such ruling would be subject to
de novo or abuse-of-discretion review in light of the PROTECT Act,
Pub. Law No. 108-21 Sec. 401(d), 117 Stat. 650 (2003) (mandating de
novo review of all downward departures). Because we feel that any
downward departure would require reversal under either standard, we
need not address this question.
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