United States v. Arnell Dion Davis, A/K/A Flip

MICHAEL, Circuit Judge,

concurring in part and dissenting in part:

The district court did not adequately justify its upward departure when it sentenced Arnell Davis for obstructing his earlier prosecution for gun possession under 18 U.S.C. § 924(c). The court decided to depart upwardly because the sentencing guidelines do “not account for obstruction of justice done to ‘facilitate or conceal’ [a] section 924(c) offense.” Ante at 192. In considering departure, the court recognized that “the analogous treatment in the Guidelines is found under section 2J1.2 [obstruction of justice].” J.A. 295. Then, in accordance with § 2J1.2’s “instruction to consider the underlying [concealed] criminal offense,” id., the court gave Davis a sentence corresponding to what he would have received if he had been convicted of violating § 924(c) at his initial trial. In doing this, the court never discussed guideline § 2J1.2(c), which plainly suggests that obstruction does not warrant a sentence equal to one that could be imposed for the underlying concealed crime. Because the district court abused its discretion when it structured the departure in a manner that directly contradicts the guidelines’ treatment of analogous conduct, I respectfully dissent from part II.A.2 of the majority opinion. I otherwise concur.

Under the Sentencing Reform Act the extent of any departure from the guidelines must be “reasonable under the circumstances.” United States v. Terry, 142 F.3d 702, 707 (4th Cir.1998) (citing 18 U.S.C. § 3742(f)(2)). When a court exercises its departure powers, the “standard of reasonableness ... demand[s] ... continued cognizance of the guidelines.” United States v. Hummer, 916 F.2d 186, 195 n. 7 (4th Cir.1990). In United States v. Terry we explained that:

In determining what is reasonable ... the sentencing court should first consider the rationale and methodology of the *197Sentencing Guidelines. In particular, it is often helpful to look to the treatment of analogous conduct in other sections of the Sentencing Guidelines. In the event the Sentencing Guidelines do not provide any useful analogies, however, the sentencing court must set forth some form of principled justification for its departure determination.

142 F.3d at 707 (internal citations omitted). Terry makes it clear that when deciding the extent of a departure, the sentencing court should look first and foremost at the rationale and methodology of the guidelines, which is most readily identified by referring to analogous conduct. If the guidelines do not provide any useful analogies, however, the sentencing court must set forth some other principled justification for its departure.

Section 2J1.2, the guideline for obstruction of justice, provides a clear analogy for how a defendant like Davis should be sentenced. Specifically, the section says that when a defendant obstructs the prosecution of a criminal offense, he is to be sentenced as an accessory after the fact to the underlying offense. U.S.S.G. § 2J1.2(e). Under § 2X3.1 an accessory after the fact is assigned a base offense level that is “6 levels lower than the offense level of the underlying offense.” This six level reduction reflects an accessory’s “reduced culpability” in comparison to a person who is convicted of the underlying offense. Id. § 2X3.1, cmt. n.2. Thus, § 2J1.2’s rationale and methodology confirm two points that are relevant to Davis’s case: (1) when a defendant obstructs the prosecution of an underlying crime, the punishment level for the underlying crime is the starting point in calculating the sentence; and (2) although the underlying crime is to be considered when determining the sentence for obstruction, a defendant should normally receive a lesser sentence than he would have received if convicted of the underlying crime.

In this case the district court decided to depart because § 2J1.2, with its cross-reference to § 2X3.1, “do[es] not allow for the consideration of a stand alone 18 U.S.C. 924(c) gun possession charge because it does not carry an offense level.” J.A. 293. In deciding the extent of the departure, the court began by recognizing that “the analogous treatment in the Guidelines is found under section 2J1.2.” J.A. 295. The court concluded that “[ajlthough this section does not permit consideration of the underlying gun charge, its instruction to consider the underlying criminal offense guides the extent of the court’s departure.” Id. The court then departed upward to an offense level yielding the same sentencing range that would have been applicable if Davis had been convicted of violating 18 U.S.C. § 924(c) at his initial trial. The court said that this level was “necessary to ensure ... that Davis d[id] not receive a net sentencing benefit for his efforts to conceal his earlier offenses.” Id. In reaching this conclusion, the court never discussed § 2J1.2’s instruction that a person who obstructs the prosecution of a crime is to be sentenced as if he was less culpable than a person who is convicted of the underlying crime. Nor did the court mention that under § 2J1.2 there is a net sentencing benefit for the defendant who is convicted of obstruction rather than for his underlying crime.

The district court abused its discretion when it failed to explain why it structured Davis’s sentence in a manner that directly contradicted the guidelines’ treatment of analogous conduct under § 2J1.2. See Terry, 142 F.3d at 707. Specifically, Davis was given a sentence corresponding to a § 924(c) conviction when § 2J1.2, with its cross-reference to § 2X3.1, plainly says that a defendant’s obstruction of a prose*198cution does not warrant a sentence equal to the underlying crime. It is true that § 2J1.2 cannot be precisely applied to a ease involving a § 924(c) offense. That does not mean, however, that the principles embodied in that analogous section (§ 2J1.2) have no application to such a case. As the Seventh Circuit has said, “[a] judge may not say: T have decided to depart, so I now throw away the guidelines.’ ” United States v. Ferra, 900 F.2d 1057, 1061-62 (7th Cir.1990), quoted in Terry, 142 F.3d at 707. But that is exactly what occurred here: the district court determined that a departure was necessary because § 2X3.1 could not be applied to an offense that has no base offense level; the court thereafter “threw away” the portion of the guidelines indicating that Davis was less culpable than if he had been convicted of violating § 924(c).

As the majority recognizes, the district court could have accommodated the guidelines’ treatment of analogous conduct in § 2J1.2 by “approximating] the result that application of section 2X3.1 would produce if it could be applied to section 924(c) offenses.” Ante at 194. I agree that the district court was not required to structure its sentence in such a manner. However, the court had a duty to explain why it chose not to accommodate a guideline that, in the district court’s own words, provided “analogous treatment” to Davis’s case. More precisely, the district court should have explained what it was about Davis’s conduct (obstructing the prosecution of a § 924(c) offense) that necessitated treating it differently than conduct generally covered in § 2J1.2 (obstructing the prosecution of an offense that has a base offense level). For example, the majority explains that Congress’s decision to impose a mandatory minimum sentence for violating § 924(c) may reflect “the special culpability with which Congress views that [conduct].” Ante at 195. Accordingly, the majority argues, the district court’s decision to impose a five-year sentence might take into account “the special- characteristics of Davis’ section 924(c) offense.” Id. While that may be true, the district court’s decision did not include the explanations offered by the majority. The only reason the district court departed was because a § 924(c) offense is punishable by a mandatory minimum rather than a base offense level. The court never suggested that there was something more serious in Davis’s conduct than in conduct obstructing the prosecution of some other offense. Because the district court did not find Davis’s conduct to be any more egregious than other conduct falling under § 2J1.2, that guideline section, it appears, should have been relied upon to set the parameters of the court’s departure.

The majority upholds the departure determination because, in its view, our circuit only requires that a district court “set forth some form of principled justification for its departure determination.” Ante at 193 (citing Terry, 142 F.3d at 707). In this case the majority believes the district court offered a “principled justification” when it said that the departure was “necessary to ensure ... that Davis did not receive a net sentencing benefit for his efforts to conceal his earlier offenses.” Ante at 192 (citing J.A. 295), 193. This “justification,” however, directly contradicts the rationale of § 2J1.2, which provides that a defendant’s obstruction does not justify a sentence equal to the underlying crime. I therefore respectfully disagree with the majority’s ultimate position that the district court was not under any duty to consider § 2J1.2, as long as it offered any principled justification in support of its departure.

First, our court has not held that a district court may, in all cases, ignore the guidelines’ treatment of analogous conduct *199as long as it offers “some form of principled justification” for its departure decision. Ante at 193. In fact, our case law suggests just the opposite. In Terry we said that “it is often helpful to look to the treatment of analogous conduct in other sections of the Sentencing Guidelines. In the event the Sentencing Guidelines do not provide any useful analogies ... the sentencing court must set forth some form of principled justification for its departure.” 142 F.3d at 707 (emphasis added). The majority reads this language to mean “nothing more ... than that” a court may look to analogous conduct in structuring a departure, or it may not. Ante at 192, 193. This interpretation does not account for the phrase “in the event,” which is generally used to mean “if.” See Webster’s Third New Int’l Dictionary 1124 (1993) (defining “if’ as “in the event that”). A more accurate reading of Terry is that if a district court decides that the guidelines do not provide any useful analogies, then it may look elsewhere for guidance in structuring its departure.1 In our case the district court specifically found that § 2J1.2 provided analogous conduct. But rather than using the guidelines’ “treatment of [this] analogous conduct,” Terry, 142 F.3d at 707, to structure its departure, the district court offered its own justification, one that was completely at odds with the very section that the court had found to be analogous. Terry does not allow guidelines’ methodology to be brushed aside so easily.2

Second, provisions of the Sentencing Reform Act and the guidelines support the conclusion that departures should, when possible, be guided by analogous conduct. For example, 18 U.S.C. § 3553(b)(1) says that when a court is imposing a sentence for an offense for which there is no applicable guideline, the court must “have due regard for the relationship of the sentence imposed to sentences prescribed by guidelines applicable to similar offenses.” Guideline § 2X5.1 says that if an offense is committed for which “no guideline expressly has been promulgated,” U.S.S.G. § 2X5.1, the court “is required to determine if there is a sufficiently analogous offense guideline and if so to apply the guideline that is most analogous,” id. at cmt. background. See also U.S.S.G. § 4A1.3 (when departing because criminal history category does not adequately reflect the seriousness of defendant’s former crimes, the court should use “as a reference, the criminal history category applicable to defendants whose criminal history ... most closely resembles that of defendant”). These provisions make clear that when there is no applicable guideline, the sentencing court must consider the guide*200lines’ treatment of analogous conduct. This same requirement should apply when, as in this case, there is a guideline (§ 2J1.2), but the court decides to depart. See Ferra, 900 F.2d at 1062.

Finally, a court must consider analogous conduct when structuring a departure in order to carry out Congress’s intention that “the sentencing guidelines system ... will guide the judge in making his decision on the appropriate sentence.” S.Rep. No. 98-225 (1984), reprinted in 1984 U.S.C.C.A.N. 3234. See also Hummer, 916 F.2d at 195 n. 7 (when deciding how far to depart, district court must remain “cognizan[t] of the guidelines”). A district court that ignores directly analogous guidelines is no longer being guided by them. Rather, it is being guided by its own subjective beliefs about how certain conduct should be sentenced. That is the exact outcome the guidelines were designed to avoid.

In sum, the district court here did not provide a reasonable basis for its departure decision. Accordingly, I would remand for resentencing. At that time, if the district court imposed the same sentence, it would have to offer a reasonable justification for why it did not apply the principles of § 2J1.2 to Davis’s case. See, e.g., United States v. Gary, 18 F.3d 1123, 1125 (4th Cir.1994) (“We do not imply that the district court must reduce the upward departure imposed on remand, but simply that a reasoned basis for the court’s decision must be set forth.”)

. Because we review the extent of a departure for abuse of discretion, we would owe deference to a district court's decision about whether a guideline provides a useful analogy-

. The majority suggests that the district court did "look[ ] to the treatment of the analogous conduct” in structuring its departure. Ante at 194-95. Specifically, according to the majority, the district court "determined by reference to § 2J1.2 that the 'underlying criminal offense' was relevant to any enhancement.” Id. at 195. But as I discuss above, § 211.2(c) does not just say that the underlying criminal offense is relevant; it also provides that obstruction of a prosecution does not warrant a sentence equal to one that could be imposed for the underlying offense. The majority does not believe that Terry required the district court to account for this latter proviso of § 2J1.2(c). I respectfully disagree. Terry recognized that "lookfing] to the treatment of analogous conduct” provides a principled method for structuring a departure. Terry, 142 F.3d at 707. The method is only principled, however, if the district court actually applies the treatment for analogous conduct or explains why that treatment is not appropriate. The district court failed to do either in this case.