United States Court of Appeals
For the First Circuit
No. 05-1725
UNITED STATES OF AMERICA,
Appellant,
v.
COREY SMITH,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Morris E. Lasker,* Senior U.S. District Judge]
Before
Boudin, Chief Judge,
Stahl, Senior Circuit Judge,
and Howard, Circuit Judge.
Patrick M. Hamilton, Assistant United States Attorney, with
whom Michael J. Sullivan, United States Attorney, was on brief for
appellant.
Jonathan Shapiro with whom Stern, Shapiro, Weissberg & Garin,
LLP was on brief for appellee.
April 7, 2006
*
Of the Southern District of New York, sitting by designation.
BOUDIN, Chief Judge. Corey Smith pled guilty to six
counts of crack distribution and one count of conspiring to sell
crack. Applying the sentencing guidelines, the district court
calculated Smith's sentencing range to be 100-125 months of
imprisonment, but then sentenced Smith to 46 months of imprisonment
(followed by six years of supervised release). The government now
appeals, arguing that Smith's sentence is unreasonably low.
In October and November of 2003, Smith--who was twenty-
one years old at the time--facilitated four sales and made three
direct sales of crack cocaine to Adolfo Brito, an undercover police
officer. All of the transactions, save perhaps one, took place
within 1,000 feet of either the George A. Lewis Middle School or
the Little Scobie Playground. Smith was arrested on April 15,
2004, and eventually pled guilty to six counts of crack
distribution and one count of conspiring to sell crack. 21 U.S.C.
§ 841(a) (2000).
Soon after his arrest, Smith was released to an in-
patient drug treatment program at Spectrum House and successfully
completed the initial treatment program. In January 2005, after
his guilty plea, he was transferred to a "sober house" run by the
South Middlesex Opportunity Council. After a series of violations
of the sober house's rules--including staying out without
authorization--Smith's release was revoked by a magistrate judge on
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February 8, 2005, and he was thereafter detained until April 19,
2005, when his sentence was imposed.
The pre-sentence report calculated Smith's total offense
level as 25, based on the quantity of crack (14.25 grams), the
proximity of his offenses to a school and playground, and Smith's
acceptance of responsibility. Because of prior convictions for
various offenses, including the possession of marijuana with the
intent to distribute, Smith had a criminal history category of V
(based on eleven criminal history points).1
The probation officer found no basis for a downward
departure under the guidelines. This meant that Smith's guideline
sentencing range was 100 to 125 months. However, the sentencing
occurred after United States v. Booker, 125 S. Ct. 738 (2005), so
the district court was not restricted to a guideline sentence. It
appears that the probation officer recommended a below-guideline
sentence of sixty months based on considerations such as Smith's
limited role in the offenses, his rehabilitation from his drug
habit, and the allegedly minor nature of his prior offenses.
After hearing argument from the government and defense
counsel, and after an allocution by the defendant, the district
1
Smith was convicted of these crimes embracing six separate
incidents spanning the period May 16, 2000, to December 3, 2002.
He served time in prison after violating the conditions of his
probation stemming from his drug possession conviction, and it was
soon after his release from that period of incarceration that he
was arrested for the crime in question here.
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judge (over the government's objection) sentenced Smith to 46
months in prison followed by six years of supervised release, and
recommended drug treatment for Smith while in prison. In
explaining the sentence, the district judge addressed Smith as
follows:
I think you're a man who has done wrong
things, gotten in trouble, find yourself in a
fix, but you're young and you may turn around
and I'd like to see you turn around rather
than get crushed. . . .
Against you is the nature of the offense that
you committed, an aggravated selling of
controlled substance regularly in a location
close to a school, and although I don't
suppose you sat and thought about whether it's
close to a school or not, I'm sure you knew
there were a lot of little kids in that area,
and that's a hell of a place to be selling
cocaine, and the law makes it more of an
offense, but in your favor is the fact that
you were involved in the offense for a limited
period of time and [d]o not appear to have
been a leader. You appear to have committed
the crime to support your drug habit.
While on pretrial release you did participate
in drug abuse treatment and, for the most
part, you received positive reports, although
I guess you had a couple of slips, didn't you?
And during pretrial release, you did obtain
employment.
Bearing all these things in mind and the
requirements of the statute that the sentence
imposed be serious -- I mean, be sufficient to
take into consideration the seriousness of the
offense, the protection of society, your own
needs to improve and to make sure that the
sentence is sufficient but not excessive, and
bearing in mind that the Probation Department
concludes that in accordance with this
statute, a sentence substantially below the
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guidelines is appropriate. I'm imposing the
same sentence on you as I have imposed on the
two defendants in this case who have appeared
before me already, although that sentence is
somewhat below what the probation guideline
recommends in your case.
In Booker, the Supreme Court held that mandatory
guidelines based on judge-made findings violated the Sixth
Amendment, but, after a severance analysis, ruled that the
guidelines should be treated as "effectively advisory." 125 S. Ct.
at 750-52, 757. The Court further stated that sentences would be
reviewable for "reasonableness," and that this review would apply
regardless of whether sentences fell within the advisory guidelines
range. Id. at 765-66.
The sentencing court's discretion remains constrained by
18 U.S.C. § 3553(a) (2000), which requires courts to consider a
number of factors in imposing sentences, United States v. Pho, 433
F.3d 53, 61-62 (1st Cir. 2006), including "the nature and
circumstances of the offense and the history and characteristics of
the defendant," 18 U.S.C. § 3553(a)(1), "the need for the sentence
imposed," id. § 3553(a)(2),2 and "the need to avoid unwarranted
2
In making this determination, courts must consider the need
for the sentence "to reflect the seriousness of the offense, to
promote respect for the law, and to provide just punishment for the
offense"; "to afford adequate deterrence to criminal conduct"; "to
protect the public from further crimes of the defendant"; and "to
provide the defendant with needed educational or vocational
training, medical care, or other correctional treatment in the most
effective manner." 18 U.S.C. § 3553(2)(A)-(D).
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sentence disparities among defendants with similar records who have
been found guilty of similar conduct," id. § 3553(a)(6).
The statute also requires courts to consider the
sentencing range established by the guidelines. 18 U.S.C. §
3553(a)(4); accord Booker, 125 S. Ct. at 764-65. In United States
v. Jiménez-Beltre, --- F.3d ---, 2006 WL 562154 (1st. Cir. Mar. 9,
2006) (en banc), this court stated that the guidelines remained "an
important consideration" because they represented the only
"integration of the multiple factors" identified in the statute,
often reflected past practice, and bore the imprimatur of the
expert agency charged with developing them. Id. at *2-*3 (emphasis
omitted).
For the same reasons, we said that a district court
should normally begin with a guideline calculation, and that after
considering departures, the district court should decide whether
"other factors" (beyond the guidelines) warranted an ultimate
sentence above or below the guideline range. Jiménez-Beltre, 2006
WL 562154, at *3. As for review for reasonableness, we stressed
the need for "a plausible explanation and a defensible overall
result." Id. at *4. The "within the range" sentence involved in
Jiménez-Beltre was easily affirmed. Id. at *3-*5.
The present case is more difficult. The sentence is not
a modest variance from the guideline range, but less than half the
minimum of the range. "[T]he farther the judge's sentence departs
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from the guidelines sentence . . . the more compelling the
justification based on factors in section 3553(a) that the judge
must offer in order to enable the court of appeals to assess the
reasonableness of the sentence imposed." United States v. Dean,
414 F.3d 725, 729 (7th Cir. 2005) (Posner, J.). However,
circumstances may make a major variance reasonable.
Here, the district court relied on six factors to
distinguish this case: Smith's youth; his involvement in the
offense "for a limited period of time"; the fact that Smith did not
"appear to have been a leader"; the fact that Smith "appear[ed] to
have committed the crime to support [his] drug habit"; Smith's
participation in drug abuse treatment and his subsequent
employment; and the probation officer's suggestion that a "sentence
substantially below the guidelines is appropriate."3
The government first argues that the district court
committed legal error because some of the factors relied upon--such
as age, drug use, lack of a leadership role, and post-offense
rehabilitation--are "either discouraged or prohibited bases for
departure" under the sentencing guidelines and circuit precedent.
Legal errors are reviewed de novo and are themselves a basis for
3
The district judge also told Smith that he was "imposing the
same sentence on you as I have imposed on the two defendants in
this case who have appeared before me already." One of the
defendants was sentenced to 46 months of imprisonment, while the
other was sentenced to 57 months of imprisonment.
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remand, Pho, 433 F.3d at 60-61, unless the error had no effect upon
the sentence.
For the most part, the Commission's decision to
discourage or exclude a factor seemingly rested either on a doubt
whether the factor had much relevance to the statutory goals of
sentencing or a concern that the factor was of a kind that tended
to promote the inequality in sentencing that the guidelines aimed
to reduce. U.S.S.G. § 5H1.1, intro. cmt. (2005); cf. id. § 5K2.0,
cmt. (backg'd). But, as we explained in Jiménez-Beltre, the
guidelines are generalizations; the benefit of advisory guidelines
is the room allowed for finer tuning. 2006 WL 562154, at *3.
That a factor is discouraged or forbidden under the
guidelines does not automatically make it irrelevant when a court
is weighing the statutory factors apart from the guidelines. The
guidelines--being advisory--are no longer decisive as to factors
any more than as to results. About the best one can say for the
government's argument is that reliance on a discounted or excluded
factor may, like the extent of the variance, have some bearing on
reasonableness.
The government also argues that the district court erred
in relying on the pre-sentence recommendation of a sentence
substantially below the guidelines range, contending that this
factor is "irrelevant" under section 3553(a). However, nothing in
the statute forbids taking the probation officer's recommendation
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into account. A sentencing judge could reasonably consider the
informed opinion of the officer in evaluating the section 3553(a)
factors, see United States v. Robinson, 433 F.3d 31, 36 (1st Cir.
2005), although the weight accorded such an evaluation surely
depends on the strength of the reasons given.
The government next argues that the district court erred
in (allegedly) basing Smith's sentence on those of his
co-defendants. The government says that this misconstrues section
3553(a)(6), which requires district courts to avoid creating
"unwarranted sentence disparities among defendants with similar
records who have been found guilty of similar conduct." The
government argues that the "disparity" referenced in the statutory
language refers only to variations from a national norm.
We agree that Congress' goal of equality primarily
envisions a national norm; the guidelines were in some measure a
response to disparities among sentences for like individuals in
different parts of the country. United States v. Wogan, 938 F.2d
1446, 1449 (1st Cir. 1991), cert. denied, 502 U.S. 969 (1991). In
any event, the district judge in this case was apparently stressing
his own consistency rather than supplying an independent
justification of the 46 month sentence.
Having rejected the government's legal-error arguments,
we turn now to its claim that the sentence was unreasonably low.
In doing so, we do not think that the district court made any clear
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error as to underlying fact warranting a remand. Robinson, 433
F.3d at 38 (sentence may be vacated if "predicated on a clearly
erroneous view of material facts").4 The issue, rather, is one of
reasonableness: the plausibility of both the explanation and the
result. Jiménez-Beltre, 2006 WL 562154, at *4.
The first fact relied on by the district court--Smith's
youth--is a discouraged factor, but one that has a conventional
appeal; among the concerns are that the crime may be a youthful
aberration and that a young man may have a greater chance for
rehabilitation. The district judge did not rely upon aberration--
Smith, after all, had participated in six crack transactions and
had a substantial criminal history continuing over several years--
but the judge did express a hope of rehabilitation.
Yet Smith's criminal career has progressed fairly
steadily toward more serious crimes (from license plate theft and
marijuana possession, for example, to crack distribution near a
school and playground). He served time in prison after violating
the conditions of his probation stemming from his marijuana
possession conviction, and it was soon after his release from that
4
The government says that the evidence did not support the
district court's statements about drugs as a cause of Smith's
crimes or his rehabilitation. A close reading indicates that the
statements were quite qualified--that Smith "appear[ed]" to have
engaged in his crimes in order to support a drug habit, and, in
treatment, "received positive reports," though he "had a couple of
slips." The former statement, so qualified, has some basis in the
PSR; the latter is a matter of characterization.
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period of incarceration that he was arrested for the crime in
question here.
The district judge also relied upon Smith's involvement
in the present offenses "for a limited period of time." But Smith
already had a significant criminal history; his first conviction
(not necessarily his first crime) occurred more than three years
before his crack transactions, which means that he was engaged in
offenses from the age of 18 through the age of 21. During this
period, he accumulated nine criminal history points, so his present
offenses appear a further extension of his criminal history.
Further, the court said that Smith did not "appear to
have been a leader," and this is true even though Smith progressed
in the six transactions from aiding others to making his own sales.
But the guideline calculations already account for this fact.
U.S.S.G. § 3B1.1 (2005). If there is some more specific aspect of
his role that mitigates over and above the usual guideline sentence
for an ordinary participant, which in principle could be true, it
is not stated.
Finally, the district judge mentioned the potential
contribution of drug addiction. The probation officer apparently
said that the defendant "appear[ed] to have committed" the crimes
to support a drug habit. At sentencing, the district judge
essentially echoed the probation officer's qualified statement
about the role of Smith's drug problems in his crimes. The
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government argues that this finding was without basis, and the
defendant does not point to any specific facts on the record that
support such a conclusion.
In any case, we note that Smith, as soon as he had
completed his first phase of rehabilitation, immediately began to
break the rules of the sober house, which resulted in the
termination of his release. Regardless of the extent to which drug
dependence may have played a role in his crimes, this relapse into
misbehavior almost as soon as controls lessened does not speak well
for his prospects of future self-control, whatever the cause for
the relapse may have been.
We are hard-put to see any basis for finding this
sentence reasonable. This is equally true if one turns from the
facts relied upon by the district judge to the general
considerations provided by the statute. Both vantages are
pertinent in assessing reasonableness, and other circuits that have
reviewed sentences for reasonableness have been willing to look at
the matter from either end of the telescope. See, e.g., United
States v. Lazenby, --- F.3d ---, 2006 WL 569284, at *4-*5 (8th Cir.
Mar. 10, 2006); United States v. Duhon, --- F.3d ---, 2006 WL
367017, at *3-*8 (5th Cir. Feb. 17, 2006); United States v.
Moreland, 437 F.3d 424, 436-37 (4th Cir. 2006).
The first sentencing factor is "the nature and
circumstances of the offense and the history and characteristics of
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the defendant." 18 U.S.C. § 3553(a)(1). Here, the offense
involved repeatedly selling crack near a school and playground, and
the defendant, although young, has accumulated a significant
criminal history. Even after some rehabilitation and while this
case was pending, he was unable to conform to the rules of the
sober house to which he was sent.
Three more factors, grouped together by the statute, are
the seriousness of the offense, need for respect for law, and need
for just punishment. 18 U.S.C. § 3553(a)(2)(A). Selling crack
near facilities where children gather speaks directly to these
factors. The offense, and the defendant's developing criminal
career, is also pertinent, again in ways unhelpful to him, to two
other statutory factors: the need "to afford adequate deterrence"
and "to protect the public." Id. § 3553(a)(2)(B)-(C).
The statute also refers to the need "to provide the
defendant with needed . . . medical care[] or other correctional
treatment . . . ." 18 U.S.C. § 3553(a)(2)(D). If drug treatment
is required by Smith, this can presumably be done whether the
sentence is 46 months or a longer guideline sentence. The
statute's language does not itself make drug addiction an
extenuating circumstance, and in any event, as we have seen, there
is no very clear evidence of a causal link between drug abuse and
Smith's crimes in this case.
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The next pertinent sentencing factor in the statute is
the guideline range itself, 18 U.S.C. § 3553(a)(4)(A), which in
turn is the principal means for complying with the last pertinent
goal, namely, "the need to avoid unwarranted sentence disparities
among defendants with similar records who have been found guilty of
similar conduct." Id. § 3553(a)(6). The factor in question--the
guideline range--is obviously not one that supports the district
court's non-guideline sentence, and, to the extent that the
guidelines are given force, pushes in the other direction.
In a nutshell, the offense is quite serious and the
defendant's record unpromising, and there are no developed findings
to indicate that rehabilitation is a better prospect than usual.
A sentence less than half the minimum range appears to us plainly
unreasonable. Although we are unhappy to disagree with the
respected and experienced district judge in this case, we cannot
sustain the sentence on the findings and explanation before us.5
The sentence is vacated and the case remanded for
resentencing consistent with this decision. Framing a new sentence
after any proceedings deemed appropriate is, in the first instance,
the responsibility of the district judge.
It is so ordered.
5
Compare United States v. Hampton, --- F.3d ---, 2006 WL
724811, at *3-*4 (4th Cir. March 23, 2006); Lazenby, 2006 WL 569284
at *4-*5; Duhon, 2006 WL 367017 at *3-*8; Moreland, 437 F.3d at
436-37; United States v. McMannus, 436 F.3d 871, 875 (8th Cir.
2006).
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