United States Court of Appeals,
Eleventh Circuit.
No. 94-4614.
UNITED STATES of America, Plaintiff-Appellant,
v.
A. Scott MILLER, Defendant-Appellee.
March 22, 1996.
Appeal from the United States District Court for the Southern
District of Florida. (No. 94-7-CR), Federico A. Moreno, Judge.
Before KRAVITCH, ANDERSON and BARKETT, Circuit Judges.
ANDERSON, Circuit Judge:
The government appeals the sentence imposed on A. Scott Miller
for engaging in monetary transactions in property derived from
specified unlawful activity in violation of 18 U.S.C. § 1957. It
argues that the district court improperly departed from the
sentence range prescribed by the Sentencing Guidelines promulgated
under the Sentencing Reform Act of 1984, 18 U.S.C. §§ 3551-3586.
Because the district court failed to make sufficient findings of
fact to support its departure, we vacate the sentence and remand
the case for resentencing.
I. FACTS
Miller pleaded guilty to a three-count indictment which
included one count of "receiving and depositing" criminally derived
1
property in violation of 18 U.S.C. § 1957 and two counts of
1
18 U.S.C. § 1957 provides, in relevant part:
Engaging in monetary transactions in property derived
from specified unlawful activity
(a) Whoever ... knowingly engages or attempts to engage
knowingly making false statements to an agency or department of the
United States in violation of 18 U.S.C. § 1001. The receiving and
depositing charge arises out of $42,133 Miller deposited in his
personal bank account on October 19, 1988. These proceeds derived
from the sale of property located in Lauderhill, Florida. In an
agreed statement of facts, Miller admitted that he knew the $42,133
was criminally derived property.
It appears from the agreed statement of facts for sentencing
that Miller had provided legal services to Fabio Enrique Ochoa from
time-to-time since at least 1981, at which time Miller filed
several pleadings for Ochoa in relation to a criminal proceeding in
which Ochoa was involved. As recently as July 23, 1990, Miller's
law firm received $50,000 toward a legal fee for the representation
of Mauricio Ochoa, Fabio's brother. The agreed statement of facts
indicates that Miller was involved with Ochoa at different times
and, perhaps, in different capacities, between 1981 and 1990.
in a monetary transaction in criminally derived
property that is of a value greater than $10,000 and is
derived from specified unlawful activity, shall be
punished as provided in subsection (b).
(c) In a prosecution for an offense under this section,
the Government is not required to prove the defendant
knew that the offense from which the criminally derived
property was derived was specified unlawful activity.
(f) As used in this section—
(1) the term "monetary transaction" means the
deposit, withdrawal, transfer, or exchange, in or
affecting interstate or foreign commerce, of funds
or a monetary instrument ... by, through, or to a
financial institution ..., but such term does not
include any transaction necessary to preserve a
person's right to representation as guaranteed by
the sixth amendment to the Constitution;
However, the scope of Miller's legitimate legal representation of
Ochoa is unclear.
At sentencing, the district court computed a base offense
level of 17, as provided by U.S.S.G. § 2S1.2(a) for violation of 18
U.S.C. § 1957. The court increased the base offense level by five
levels based on its finding that Miller knew that the funds were
narcotics proceeds. See U.S.S.G. § 2S1.2(b)(1)(A).2 The court
added another two-level increase for Miller's use of special skill
as a criminal defense attorney in a manner that significantly
facilitated the commission or concealment of the offense. See
U.S.S.G. § 3B1.3. The court then granted a three-level downward
departure for acceptance of responsibility. See U.S.S.G. §§ 3E1.1.
Finally, the court granted Miller a seven-level downward departure
on the grounds that the Sentencing Commission (the "Commission")
failed to adequately consider the impact of U.S.S.G. § 2S1.2(a)
upon an attorney who derives knowledge of the source of the
criminally-derived property through a legitimate attorney-client
relationship.3 See U.S.S.G. § 5K2.0; 18 U.S.C. § 3553(b).
2
It found that Miller's admitted "willful blindness"
amounted to such knowledge.
3
In its Downward Departure Sentencing Order, the district
court stated:
The Court finds that the Sentencing Commission has
not adequately considered the impact of Section 2S1.2
upon an attorney who derives knowledge of the source of
the property through a legitimate attorney-client
relationship. Thus although Scott Miller has had the
offense level enhanced because of his status as an
attorney, it was his position as a criminal lawyer that
allowed him to legitimately represent his clients.
Therefore, the Court specifically finds that the
guidelines do not address this circumstance to the
appropriate degree, and thus the sentence may be
II. DISCUSSION
In Sentencing Guidelines cases, we review the district
court's findings of fact for clear error and its legal conclusions
de novo. United States v. Rojas, 47 F.3d 1078, 1080 (11th
Cir.1995). "[T]he issue of whether a district court has the
authority to depart downward from the applicable guideline range in
a particular situation is a question of law subject to our plenary
review." United States v. Costales, 5 F.3d 480, 483 (11th
Cir.1993).
Congress has made clear that a district court has authority to
depart from the applicable guideline sentence range only if "the
court 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 formulating the
guidelines...." 18 U.S.C. § 3553(b). See also U.S.S.G. § 5K2.0.
We have recognized that "departure is reserved for "unusual' cases
where there is something atypical about the defendant or the
circumstances surrounding the commission of the crime which
adjusted to reflect such fact.
As further support for its decision to depart from the
Guidelines, the district court also stated:
[T]he defendant's conduct makes this an atypical case,
outside of the heartland of other cases and thus for
that reason, combined with the mitigating factors
related to the individual, the Court departs downward
from the guidelines. The Court specifically finds that
defendant Miller's conduct significantly differs from
the norm, thereby allowing the Court to exercise its
discretion in departing downward from the guidelines.
Id. This constitutes the district court's entire discussion
of its rationale for departing from the guidelines.
significantly differ from the normal or "heartland' conduct in the
commission of the crime." United States v. Gonzalez-Lopez, 911
F.2d 542, 549 (11th Cir.1990).
We apply a three-step process when reviewing departures under
U.S.S.G. § 5K2.0. United States v. Godfrey, 22 F.3d 1048, 1053
(11th Cir.1994); United States v. Weaver, 920 F.2d 1570, 1573
(11th Cir.1991); United States v. Shuman, 902 F.2d 873, 876 (11th
Cir.1990). First, we review de novo the decision as to whether the
guidelines adequately consider a particular factor. Id. Second,
if the factor was not adequately considered, we examine whether
consideration of this factor is consistent with the goals of the
Sentencing Guidelines. Id. Finally, we review the departure for
reasonableness. Id.
We note ostensible disagreement among panels in this circuit
regarding the second step of the departure analysis. Compare
United States v. Shuman, 902 F.2d 873, 876 (11th Cir.1990), with
United States v. Weaver, 920 F.2d 1570, 1573 (11th Cir.1991).
Under the Shuman line of cases, the second step involves an
evaluation of whether, if adequate consideration was not given to
the factor, consideration of it is consistent with the goals of the
guidelines. 902 F.2d at 876 (citingUnited States v. Campbell, 878
F.2d 164, 165 (5th Cir.1989)). Under the Weaver line of cases, the
second step involves an inquiry into whether there exists factual
support for the departure (reversing only for clear error). 920
F.2d at 1573 (citing United States v. Diaz-Villafane, 874 F.2d 43,
49-50 (1st Cir.), cert. denied, 493 U.S. 862, 110 S.Ct. 177, 107
L.Ed.2d 133 (1989)).
Panels of this court do not possess the power to disregard
precedent from prior panel decisions. Bonner v. City of Prichard,
661 F.2d 1206, 1210 (11th Cir.1981) (en banc). When there is
ostensibly inconsistent precedent, we " "must resort to common
sense and reason' to determine the appropriate rule of law." Dorse
v. Armstrong World Industries, 798 F.2d 1372, 1376 (11th Cir.1986)
(quoting United States v. Hobson, 672 F.2d 825, 827 (11th
Cir.1982)); Georgia Association of Retarded Citizens, 855 F.2d
794, 797-98 (11th Cir.1988). The most favored means of resolving
ostensibly inconsistent panel decisions is to interpret them
consistently by identifying the common thread tying them together.
United States v. Hogan, 986 F.2d 1364, 1369 (11th Cir.1993) ("[T]he
most favored means of resolving an inconsistency in circuit
precedent is to determine that the inconsistency is more apparent
than real.").
These two lines of cases do not represent diametrically
opposed rules, but rather, refinements of the same general process.
A court should evaluate whether the departure is consistent with
the goals of the guidelines, whether as part of the determination
that the Commission adequately considered a factor, or as a second
step. Likewise, we could not even entertain an argument that the
Commission failed to adequately consider a particular circumstance
if there exists no factual predicate for that circumstance.
Accordingly, we believe the ostensible inconsistency between these
two lines of cases is more apparent than real. We apply both rules
as a matter of common sense and practicality.
The government argues that the district court erred in
granting the seven-level downward departure. It contends that the
Commission adequately considered a defendant who is also an
attorney and whose position as an attorney aids in his or her
commission of the offense. In particular, it argues that Miller's
status as an attorney was incorporated into the guidelines through
the § 3B1.3 upward adjustment for an abuse of a position of public
or private trust or the use of a special skill in facilitating,
committing, or concealing the offense.
By contrast, Miller argues that the Commission failed to
consider the impact of U.S.S.G. § 2S1.2(a) on an attorney who
derives knowledge of the source of the property through a
legitimate attorney-client relationship. Miller's argument is
essentially as follows. The original version of 18 U.S.C. § 1957,
passed in 1986, did not include any ameliorating provision relating
to legitimate attorney-client relationships notwithstanding its
presence in early versions of the bill.4 When Congress amended the
statute in 1988, however, the exemption phrase now found in §
1957(f)(1) appeared: "[T]he term "monetary transaction' ... does
not include any transaction necessary to preserve a person's right
to representation as guaranteed by the sixth amendment to the
Constitution."
Sentences for violations of § 1957 are meted out pursuant to
U.S.S.G. § 2S1.2. While conviction for § 1957 does not require
knowledge that the property is from a "specified unlawful
4
The provision remained in the Omnibus bill which passed the
House on September 11 and October 8, 1986. See 1985-1986 Cong.
Index (CCH) 35,101-102. It was dropped from the bill in
conference, however, and did not appear in the Money Laundering
Control Act which was signed into law as part of Pub.L. 99-570.
activity,"5 it does require that the defendant knew that the funds
6
were "criminally derived property." Section 2S1.2 became
effective on November 1, 1987, shortly after the original (1986)
version of § 1957 was enacted. It has not been amended to reflect
the exemption provision added in 1988. 7 Thus, Miller argues, the
Commission did not consider the effect that knowledge gained
through a legitimate attorney-client relationship would have on
sentencing.
Although the parties frame a novel issue, we decline to
decide this question on the record before us because the district
court made insufficient factual findings to support its legal
conclusions. We recently set forth guidelines for district courts
in granting downward departures:
A district court granting a downward departure from the
applicable guidelines should articulate the specific
mitigating circumstances upon which it relies and the reasons
these circumstances are of a kind, or to a degree, not
adequately taken into consideration by the sentencing
commission.
United States v. Baker, 19 F.3d 605, 616 (11th Cir.1994). As we
5
See supra note 1.
6
Indeed, the requirement that the defendant had knowledge
that the funds were criminally derived property is one of the
reasons why the base offense level (17) for a § 1957 offense is
so high: "The offense levels are higher than in § 2S1.3 because
of the higher statutory maximum and the added element of knowing
that the funds were criminally derived property." U.S.S.G. §
2S1.2 comment. (backg'd).
7
The Commission promulgated two clerical amendments in
subsequent years, but they do not affect Miller's argument. As
of November 1, 1989, the Commission amended the statute to
correct minor clerical errors. See Federal Sentencing Guidelines
Manual, Appendix C, amendment 215. As of November 1, 1991, the
Commission added U.S.S.G. § 2S1.2(c) to set forth fines for
organizations. See Federal Sentencing Guidelines Manual,
Appendix C, amendment 422.
have made clear, departures pursuant to § 5K2.0 of the Sentencing
Guidelines and 18 U.S.C. § 3553(b) are reserved for unusual cases
which differ significantly from the normal or "heartland" conduct
in the commission of the crime. United States v. Gonzalez-Lopez,
911 F.2d 542, 549 (11th Cir.1990), cert. denied, 500 U.S. 933, 111
S.Ct. 2056, 114 L.Ed.2d 461 (1991). Indeed, the Sentencing
Commission anticipated that cases warranting departure would be
rare. U.S.S.G. Chap. 1, part A, § 4(b); United States v. Godfrey,
22 F.3d 1048, 1053 (11th Cir.1994). Where the grounds for a
departure are not otherwise clear, the district court should
address the four factors relevant to its decision to depart
downward.
In this case, concluding that the district court's analysis
was inadequate, we remand with instructions for the district court
to make explicit findings of fact with respect to the circumstances
warranting a downward departure, to state its reasoning as to
whether the guidelines adequately consider such circumstances, to
state its reasoning as to whether treatment of such circumstances
as grounds for downward departure is consistent with the goals of
the sentencing guidelines, and finally, if the district court's
analysis indicates that departure is appropriate, to state reasons
for the extent of the departure.
With respect to a possible departure because of Miller's
assertion that he gained his knowledge that the funds were
criminally derived through a legitimate attorney-client
relationship, we note that Miller has the burden of proving, inter
alia, that an attorney-client relationship did exist at specific,
8
relevant times, and that such relationship was legitimate. See
United States v. Wilson, 884 F.2d 1355, 1356 (11th Cir.1989) ("The
guidelines contemplate that the government has the burden of
proving the applicability of sections which would enhance the
offense level and the defendant has the burden of proving the
applicability of guideline sections which would reduce the offense
level."); United States v. Taxacher, 902 F.2d 867, 873 n. 9 (11th
Cir.1990) (same). It may also be relevant whether the $42,133 was
a legal fee or, if it was not, whether it bore some other specific
relationship to a legitimate attorney-client relationship.9
Accordingly, we vacate Miller's sentence and remand for
resentencing.10
VACATED and REMANDED.
. . . . .
8
The instant, very limited record is unclear as to the
legitimacy of the apparent attorney-client relationship,
including the extent of Miller's knowledge of Ochoa's illegal
activities and any possible complicity. Miller has the burden of
demonstrating legitimacy and, to this end, further development of
the record may be necessary if Miller is to satisfy his burden.
Obviously, if the attorney-client relationship was not
legitimate, any departure would not be consistent with the goals
of the guidelines.
9
On remand, the district court should consider whether
Miller's guilty plea is relevant to the issue of the relationship
between the $42,133 and the legal representation. See 18 U.S.C.
§ 1957(f)(1) ("The term "monetary transaction' ... does not
include any transaction necessary to preserve a person's right to
representation as guaranteed by the Sixth Amendment to the
Constitution.").
10
Of course, the district court should make such other
findings and analyses as are appropriate, in addition to those
discussed in this opinion.
We reject Miller's alternative argument in support of
the district court's sentence, namely, that the court erred
in increasing the Base Offense Level by seven levels.
. . . . .