United States v. DeGrandis

USCA1 Opinion









October 26, 1995 [Not for Publication] [Not for Publication]

United States Court of Appeals United States Court of Appeals
For the First Circuit For the First Circuit
_____________________

No. 94-2136
UNITED STATES,

Appellee,

v.

JOHN DEGRANDIS,

Defendant, Appellant.

_____________________


APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Joseph L. Tauro, U.S. District Judge] ___________________

_____________________


Before

Selya and Stahl, Circuit Judges, _______________

and Gorton*, District Judge. _______________

_____________________


John C. Doherty for appellant. _______________
Jeanne M. Kempthorne, Assistant United States Attorney, with ____________________
whom Donald K. Stern, United States Attorney, was on brief for _______________
the United States.
_____________________


_____________________


____________________

*Of the District of Massachusetts, sitting by designation.
















Per Curiam. In September of 1994, the district ___________

court sentenced John DeGrandis to a prison term of 151

months1 and three years of supervised release for a bank

robbery he committed in January 1992. DeGrandis now appeals

his sentence, challenging the district court's ruling that it

lacked authority under the Sentencing Guidelines to depart

downward from the prescribed sentencing range based on his

lack of youthful guidance.2

Under the Guidelines in effect at the time of

sentencing, see U.S.S.G. 1B1.11(a), "lack of guidance as a ___

youth and similar circumstances indicating a disadvantaged

upbringing" were forbidden grounds for downward departure.

U.S.S.G. 5H1.12. (added by amendment, Nov. 1992).

____________________

1. DeGrandis pled guilty without a plea agreement. Applying
the Guidelines in force at the time of sentencing, the
district court sentenced DeGrandis to the minimum of the
Guideline range based on an adjusted offense level of 29 and
a criminal history category of VI, pursuant to the career
offender provisions of U.S.S.G. 4B1.1. Pursuant to
U.S.S.G. 3E1.1(b), the court granted DeGrandis a three-
level reduction for acceptance of responsibility.

2. At his sentencing hearing, DeGrandis advanced his
childhood physical abuse as a factor supporting a departure
for lack of youthful guidance. Now, in his appellate brief,
he seems to suggest that childhood abuse is a separate ground
for departure, distinct from lack of youthful guidance. But
he does not make that clear, he makes no separate arguments,
and he points to no precedent treating childhood abuse
separately. We, therefore, consider childhood abuse as
subsumed in his lack of youthful guidance arguments, but we
would reach the same result if we considered it separately.
See United States v. Zannino, 895 F.2d 1, 17 (1st Cir.), ___ _____________ _______
cert. denied 494 U.S. 1082 (1980) (claims raised in _____ ______
conclusory fashion, unsupported by developed argumentation,
are deemed waived).

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DeGrandis argues, however, that 5H1.12 effected a

substantive change to the Guidelines subsequent to his

offense, and therefore its application to him was a violation

of the Ex Post Facto Clause of the Constitution. See United ___ ______

States v. Clark, 8 F.3d 839, 844-45 (D.C. Cir. 1993) (holding ______ _____

that the addition of 5H1.12 was a substantive change

implicating Ex Post Facto Clause); accord United States v. ______ ______________

Johns, 5 F.3d 1267, 1272 (9th Cir. 1993); see also United _____ ___ ____ ______

States v. Prezioso, 989 F.2d 52, 53 (1st Cir. 1993) (holding ______ ________

that Guideline amendments that are "substantive" rather than

"clarifying" implicate Ex Post Facto Clause).

We need not reach DeGrandis' ex post facto claim.

Assuming but not deciding that (1) the district court's

decision not to depart downward was based on a belief that it

lacked legal authority to depart based on lack of youthful

guidance and (2) the district court, contrary to that belief,

did have such authority,3 we hold nonetheless that the

factual record does not support a downward departure for lack

of youthful guidance.

This circuit has not decided whether lack of

youthful guidance was a permissible ground for departure


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3. In order to assume that such authority existed, we must
further assume that lack of youthful guidance was a
permissible ground for departure at the time of the bank
robbery, and therefore the application of Guideline 5H1.12,
which was in effect at the time of sentencing but not at the
time of the offense, would violate the Ex Post Facto Clause.

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before 5H1.12 was added to the Guidelines in 1992; only the

Ninth and District of Columbia Circuits have approved such

departures. See United States v. Clark, 8 F.3d 839, 845 ___ _____________ _____

(D.C. Cir. 1993); United States v. Anders, 956 F.2d 907, 913 _____________ ______

(9th Cir. 1992), cert. denied, 113 S. Ct. 1592 (1993); United _____ ______ ______

States v. Floyd, 945 F.2d 1096, 1099 (9th Cir. 1991). Floyd ______ _____ _____

and Anders were decided before the addition of Guideline ______

5H1.12. The District of Columbia and Ninth Circuits have

upheld departures for lack of youthful guidance even after

5H1.12 became effective, applying the pre-1992 Guidelines

to avoid ex post facto problems. Clark, 8 F.3d at 845 (D.C. _____

Cir. 1993); Johns, 5 F.3d at 1272 (9th Cir. 1993). _____

The Ninth Circuit has approved departures for lack

of youthful guidance based on evidence of abandonment by

parents, lack of education, and imprisonment as a youth,

provided that there is a nexus between those factors and the

crimes for which the defendant is being sentenced. Anders, ______

956 F.2d at 913; Floyd, 945 F.2d at 1099. The District of _____

Columbia Circuit relied on Anders and Floyd in holding that a ______ _____

combination of childhood exposure to domestic violence and

lack of youthful guidance was a permissible ground for

departure. Clark, 8 F.3d at 845. Cf. United States v. _____ ___ _____________

Haynes, 985 F.2d 65, 68-69 (2d Cir. 1993) (rejecting lack of ______

youthful guidance as grounds for departure and stating that

defendant failed in any event to make out its elements



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(abandonment by parents, lack of education, and imprisonment

as a minor), citing Floyd, 945 F.2d at 1099). Cognizant of _____

these holdings from other circuits, we shall assume arguendo ________

that lack of youthful guidance was, in January 1992, a

"special circumstance[] . . . of the `kind' that the

Guidelines, in principle, permit[ted] the sentencing court to

consider." United States v. Rivera, 994 F.2d 942, 951 (1st _____________ ______

Cir. 1993).

In Rivera, this court explained the appropriate ______

legal analysis for departures from the Guidelines. Id. at __

946-52. In assessing circumstances "where the Guidelines do

not expressly forbid, encourage, or discourage departures . .

., the district court will decide whether (and, if so, how

much to depart) by examining the `unusual' nature of these

circumstances." Id. at 949. Put differently, "the law tells __

the judge, considering departure, to ask basically, 'Does

this case fall within the "heartland" [of typical

circumstances] or is it an unusual case?'" Id. at 948. __

Rivera directs the appellate court to "review the district ______

court's determination of `unusualness' with full awareness

of, and respect for, the trier's superior `feel' for the

case." Id. at 952. We apply this framework for review here. __



At the conclusion of the sentencing hearing, the

district judge stated that, if he had the authority to depart



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for lack of youthful guidance, he would have imposed a prison

sentence of 90 months instead of 151 months. The district

judge, however, made no specific factual findings to support

such a departure, other than to implicitly adopt the facts in

the presentence report and the mental health evaluation

report. The comments of the district judge are not entirely

clear. At one point in the sentencing hearing, he stated

that the mental health evaluation report did not support the ___

requested departure for lack of youthful guidance; at a later

point, he stated that the report did support such departure.

Although the basis for the district court's decision is less

than certain, we have nonetheless examined the entire

sentencing record with the "respect for the trier's superior

`feel'" called for in Rivera. Id. ______ __

Unfortunately for DeGrandis, the circumstances of

his youth are not unusual among criminal offenders, and thus

do not justify the departure he seeks. Although he had an

alcoholic father who was physically and verbally abusive,

that abuse was directed primarily toward DeGrandis' mother.

Nor was DeGrandis abandoned by his parents in his formative

years. After his parents separated during his fourteenth

year, he continued to live with his mother in South Boston,

his home at the time of his arrest. After the separation,

DeGrandis maintained some contact with his father, who also

lived in South Boston. DeGrandis did not have an unusual



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lack of education, having done well in school until he

dropped out in the ninth grade, apparently because of a

distaste for forced busing. While in state prison for

earlier offenses, he earned a General Equivalency Diploma and

took college classes. DeGrandis' entanglements with the

criminal justice system did not begin until he was nineteen

years old; he had no juvenile adjudications and therefore was

never imprisoned as a youth. Although the suicide of his

brother in 1988 was no doubt a traumatic event, DeGrandis was

23 years old at the time of the unfortunate event and it

therefore does not reflect on his youthful circumstances.

Contrary to DeGrandis' assertion, these facts do not warrant

a departure for lack of youthful guidance.4

Our conclusion is supported by the clinical

findings in the mental health evaluation report, which

concluded that the "impact on DeGrandis of being raised in a

dysfunctional family due to his parents' continuous fighting

and subsequent separation" was that DeGrandis "developed some

dysfunctional methods of dealing with stress," but that "he

could have decided to change aspects of his life and adopted

a different lifestyle." The Guidelines in effect at the time

of his offense and at the time of his sentencing provided

that mental and emotional conditions are not ordinarily

____________________

4. Once again, we assume but do not decide that such a
departure was permissible in an appropriate case where the
offense occurred before U.S.S.G. 5H1.12 became effective.

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relevant factors for departure. U.S.S.G. 5H1.3. To the

extent that DeGrandis was mentally or emotionally impacted by

his difficult upbringing, we do not find Degrandis' condition

extraordinary. See Rivera, 994 F.2d at 948. It does appear ___ ______

from the record that drug addiction has been the most

powerful demon with which DeGrandis has battled. If there is

a nexus between his situation as a youth and his crimes, that

nexus is drug addiction. The need for money to support that

addiction is the most likely motivation for his crimes. Drug

abuse, however, was a forbidden grounds for departure under

the Guidelines in effect at the time of his offense and at

the time of his sentencing. U.S.S.G. 5H1.4.

Thus, we find that the circumstances of DeGrandis'

youth do not take him outside the "heartland" of the career

offender guideline. To the extent that the district judge

made a finding that DeGrandis' background was sufficiently

unusual to justify a departure for lack of youthful guidance,

that finding was erroneous under Rivera's "respectful" ______

standard of review. 994 F.2d at 952. Remand for

resentencing would therefore be "pointless." See id. at 953 ___ __

("we should not (and would not) order a new proceeding were .

. . there no significant possibility that the facts and

circumstances would permit the district court lawfully to

order a departure").





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Accordingly, the sentence imposed on DeGrandis by

the district judge is affirmed. ________

















































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