United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 16, 2004
_______________________ Charles R. Fulbruge III
Clerk
No. 03-40283
_______________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JACK MONTGOMERY PAINTER,
Defendant-Appellant.
Appeal from the United States District Court
For the Southern District of Texas
Before JONES, EMILIO M. GARZA, and BENAVIDES, Circuit Judges.
EDITH H. JONES, Circuit Judge:
Jack Montgomery Painter pleaded guilty to one count of
accessory after the fact for concealing from federal authorities
the whereabouts of his fugitive son. See 18 U.S.C. §§ 3,
3146(a)(1), (b)(1)(A)(i). The district court sentenced Painter to
three years probation and imposed a $52,200 fine. Painter appeals
the fine, which far exceeds the maximum $5,000 fine under the
sentencing guidelines. Because the district court departed on
impermissible grounds from the sentencing guidelines range, we
reverse and remand for resentencing.
I. BACKGROUND
Painter’s son, Richard, was indicted for possessing with
intent to distribute methamphetamine and cocaine. Richard was
released after Painter secured a $20,000 bond. When Richard failed
to appear for his rearraignment, he was indicted for violating
18 U.S.C. §§ 3146(a)(1), (b)(1)(A)(i). After an approximately
nine-month investigation, the authorities arrested Richard in Costa
Rica and extradited him to the United States. Six months later,
Painter was indicted as an accessory after the fact to Richard’s
failure to appear violation, and he pled guilty.
The presentence report (PSR) indicated a total offense
level of 7 and a criminal history category of I, yielding a
punishment range of zero to six months imprisonment with a fine
range of $500 to $5,000. In addition, the PSR reported that
Painter “appears to have a net worth of approximately $2,837,713.”
The district court ultimately sentenced Painter to three years
probation and ordered him to pay a fine of $52,200 within one week.
In written findings, the district judge explained that he
departed from the guideline range because “a special factor exists
in that the defendant has extraordinary assets, making a fine
within the guideline range less than punitive.” The court also
noted that “[t]he defendant caused expenses to the United States
greatly in excess of the guideline fine range . . . [I]ncarceration
2
was not appropriate for the circumstances of this offense, but
punishment was needed.”
In arriving at the final fine amount, the judge stated
that the “fine should be based on the consequences to the United
States” of Painter’s behavior. The court found that the U.S.
Attorney had spent approximately 58 hours investigating Richard’s
case (at $150 per hour). He then trebled this amount ($8,700)
because “punitive damages are often treble damages.” That total
($26,100) was then doubled to arrive at the final fine because,
according to the district judge, the U.S. Marshal’s Service had
spent at least as much time on Richard’s case as had the U.S.
Attorney.
II. STANDARD OF REVIEW
The Prosecutorial Remedies and Other Tools Against the
Exploitation of Children Today Act of 2003 (PROTECT Act), Pub. L.
No. 108-21, § 401, 117 Stat. 650, 670 (Apr. 30, 2003), controls
this court’s standard of review. Before the passage of the PROTECT
Act, codified at 18 U.S.C. § 3742, this court reviewed a district
court’s decision to depart from the guidelines for abuse of
discretion. Koon v. United States, 518 U.S. 81, 98 (1996); United
States v. Wilder, 15 F.3d 1292, 1300 (5th Cir. 1994). The PROTECT
Act alters that standard of review, with respect to the departure
decision, to de novo.1 See United States v. Bell, No. 03-20194,
1
The PROTECT Act has been held in this circuit to apply
retroactively. United States v. Bell, No. 03-20194, 2004 WL
3
2004 WL 1114580, at *3 (5th Cir. May 19, 2004); see also 18 U.S.C.
§ 3742(e)(3)(B) (2000 & Supp. 2003).
III. DISCUSSION
The court articulated two specific factors to justify the
departure from the guidelines: (1) Painter’s “extraordinary assets”
and (2) the loss to the government. As will be seen, these factors
are specifically proscribed from consideration in sentencing.
In order to justify a departure, the court must determine
whether
there exists an aggravating or 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. In determining
whether a circumstance was adequately taken
into consideration, the court shall consider
only the sentencing guidelines, policy
statements, and official commentary of the
Sentencing Commission.
18 U.S.C. § 3553(b) (2000). Thus, this court must examine whether
the factors relied upon by the district court were “adequately
taken into consideration by the Sentencing Commission.” But the
PROTECT Act prohibits departures based on factors not authorized
under § 3553(b). 18 U.S.C. § 3742(3)(B)(ii).
When determining the fine amount, the district judge must
consider “the need for the combined sentence to reflect the
seriousness of the offense (including the harm or loss to the
1114580, at *3 (5th Cir. May 19, 2004).
4
victim and gain to the defendant), to promote respect for the law,
to provide just punishment and to afford adequate deterrence.”
U.S.S.G. § 5E1.2(d)(1) (2001);2 see also 18 U.S.C. § 3553(a)(2)(A).
More specifically, and subject to important caveats, the district
court should consider “the defendant’s income, earning capacity,
and financial resources” and “any pecuniary loss inflicted upon
others as a result of the offense.” 18 U.S.C. §§ 3572(a)(1),
(3) (2000). A defendant’s “income” and financial resources, for
instance, should only be considered when determining his ability to
pay any fine at all. See 18 U.S.C. § 3572(a)(2); U.S.S.G.
§ 5E1.2(a). Moreover, the guidelines mandate that a defendant’s
socioeconomic status is not relevant in determining his sentence.
U.S.S.G. § 5H1.10, p.s.
The PSR listed Painter’s net worth only to illustrate his
ability to pay the statutory fine. The district court, however,
specifically relied on the defendant’s “extraordinary assets” in
concluding that the guideline fine range was “less than punitive.”
We cannot read this conclusion as other than an impermissible use
of the defendant’s socioeconomic status. See United States v.
2
Painter was sentenced in February 2003. However, even
though the guidelines require use of the version in effect at the
time of the defendant’s sentence, the probation officer used the
2001 version of the sentencing guidelines when preparing the PSR.
See U.S.S.G. § 1B1.11 (2001). Neither party has objected to the
court’s use of the 2001 guidelines manual and, therefore, this
court refers to the 2001 version throughout this opinion. No
differences significant to this case exist between the 2001 and
2002 manuals.
5
Graham, 946 F.2d 19, 21 (4th Cir. 1991) (holding that “affluence
alone cannot justify an upward fine departure”). Because the
district court relied on a factor that had already been considered
and rejected by the Sentencing Commission, this aspect of the
court’s departure decision is erroneous. See 18 U.S.C. § 3553(b).
The district court also relied on the loss to the
Government to justify its upward departure on the fine. While
Painter’s offense carries a maximum statutory fine of $125,000,
18 U.S.C. §§ 3571, 3 (2000), the guidelines prescribe a fine range
of $500 to $5,000, pursuant to section 5E1.2(c)(3). As has been
noted, the district court calculated the $52,200 fine based
entirely on the estimated loss to the Government. The guidelines
do allow the district court to consider “property damage or loss
not taken into account within the guidelines” when deciding whether
to depart. U.S.S.G. § 5K2.5, p.s. “Loss” in the sentencing
guidelines generally refers to “pecuniary loss to a person other
than the defendant.” 18 U.S.C. § 3571(d) (2000) (cited by U.S.S.G.
§ 5E1.2 cmt. n.2). Further, the comments to the pertinent guide-
line provision contemplate the possibility of upward departures
where twice the amount of gain to the defendant or the amount of
loss caused by the offense exceeds the maximum of the fine
guideline. U.S.S.G. § 5E1.2 cmt. n.4.
The “loss” to the Government is contended to fall within
these standards authorizing an upward departure, but this position
is untenable. The comments to section 2B1.1 specifically exclude
6
from loss the “costs to the government of, and costs incurred by
victims primarily to aid the government in, the prosecution and
criminal investigation of an offense.” U.S.S.G. § 2B1.1 cmt.
n.2(D)(ii) (emphasis added).3 The sentencing guidelines contem-
plated and rejected this factor as a basis for calculating loss; it
may not also be the basis for an upward departure.
In sum, the district court relied on impermissible
factors when deciding whether to depart from the applicable
guideline fine range. See 18 U.S.C. § 3742(f)(2). We must
accordingly reverse the district court’s imposition of the $52,200
fine and remand for resentencing within the applicable guideline
fine range. See 18 U.S.C. § 3742(g); see also United States v.
Martin, 363 F.3d 25, 40 (1st Cir. 2004).
REVERSED and REMANDED.
3
This court derives its definition of “loss” from the
comments to section 2B1.1. These comments offer the most apt
exposition of “loss” relevant to this determination.
Furthermore, the guidelines explicitly reference these comments
as instructive as to the parameters of loss. See e.g., U.S.S.G.
§ 8A1.2 cmt. n.3(i).
7