United States v. Gendraw

United States Court of Appeals
For the First Circuit

No. 02-2099

UNITED STATES OF AMERICA,

Appellee,

v.

SYLVESTER GENDRAW, a/k/a SAMPSON,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

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

Before

Howard, Circuit Judge,

and Bownes and R. Arnold,* Senior Circuit Judges.

Heidi B. Shore for appellant.
John A. Wortmann, Jr., Assistant United States Attorney, with
whom Michael J. Sullivan, United States Attorney, was on brief for
the United States.

July 28, 2003

*
Of the United States Court of Appeals for the Eighth Circuit,
sitting by designation.
 R. ARNOLD, Senior Circuit Judge. As part of a plea

agreement, Sylvester Gendraw pleaded guilty to two counts of

possession of cocaine base with intent to distribute, in violation

of 21 U.S.C. § 841(a)(1). Mr. Gendraw and the United States agreed

that his base offense level was 32, that the District Court could

give a three-level reduction for acceptance of responsibility, and

that Mr. Gendraw qualified as a career offender under United States

Sentencing Guidelines §§ 4B1.1 and 4B1.2. The defendant, however,

reserved the right to request a downward departure under § 4A1.3 of

the Guidelines, on the basis that his designation as a career

offender overstated his criminal history and the threat of

recidivism. The District Court accepted his plea, rejected his

motion for a downward departure, and sentenced Mr. Gendraw to 151

months’ imprisonment. Defendant is before this Court appealing the

District Court’s conclusion that it lacked the authority to grant

a downward departure in this case. We affirm. The facts of this

case do not come close to placing it outside the heartland of the

Guidelines.

I.

Mr. Gendraw has a long history of convictions in both

state and federal courts dating from 1983 to 1995. His

convictions, in chronological order, are: two counts of assault

and battery, one count of assault and battery (committed while on

probation), one count of assault and battery with a dangerous

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weapon (committed while on probation), larceny from a person and

threat to commit a crime (committed while on probation), larceny

from a person and assault and battery (committed while on

probation), attempt to commit larceny from a person, armed home

invasion and threats with intent to extort, witness intimidation,

and possession of marijuana. The Pre-Sentence Investigatory Report

indicated that he has also been arrested some eighteen additional

times on various charges and has received seven disciplinary

reports while incarcerated by the Commonwealth of Massachusetts.

To say the least, Mr. Gendraw is not new to the criminal justice

system.

It is undisputed that Mr. Gendraw qualifies as a career

criminal on the basis of just three of these convictions: attempt

to commit larceny from a person, armed home invasion and threats

with intent to extort, and witness intimidation. His sole argument

before the District Court was that he should receive a downward

departure on the ground that his designation as a career criminal

overstates his criminal history. He argued, and still maintains,

that the less severe nature of his qualifying crimes and their

remoteness in time provide sufficient grounds for a downward

departure. The District Court denied the motion because the judge

felt that he lacked the authority to grant it.

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 II.

Mr. Gendraw asks this Court to hold that the District

Court erred in concluding that it lacked the authority to depart

downward. We need not reach this question, however, because we

conclude that even if the District Court was authorized to grant

downward departures based upon the “smallness” of qualifying

offenses and their age, Mr. Gendraw simply would not qualify.

As a general rule, this Court has no authority to review

District Court decisions to deny a downward departure. When the

District Court’s conclusion is that it lacks the legal authority to

depart, however, we will review this decision de novo. United

States v. Snyder, 136 F.3d 65, 67 (1st Cir. 1998). Although

departure decisions should be made by the sentencing judge in the

first instance, see United States v. Hardy, 99 F.3d 1242, 1250 (1st

Cir. 1996), where the record provides no basis for departure on any

ground, we are not required to remand to the District Court. See

United States v. Rushby, 936 F.2d 41, 42 (1st Cir. 1991).

This Court has held that § 4A1.3 departures are available

to career offenders in some cases. United States v. Lindia, 82

F.3d 1154, 1165 (1st Cir. 1996). To be entitled to such a

departure, however, the defendant must demonstrate that his case is

so exceptional that it is set apart from typical cases. See United

States v. Perez, 160 F.3d 87, 90 (1st Cir. 1998) (en banc) (per

curiam) (“Under Koon, if an encouraged factor (e.g., criminal

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history under § 4A1.3) is already taken into account by a Guideline

(as is criminal history in the career offender guideline), ‘the

court should depart only if the factor is present to an exceptional

degree or in some other way makes the case different from the

ordinary case where the factor is present.’ ”); see also United

States v. Pearce, 191 F.3d 488, 497 (4th Cir. 1991) (recognizing

that § 4A1.3 departures for career offenders “are reserved for the

truly unusual case”).

According to these cases, then, Mr. Gendraw would be

eligible for a departure only if he could prove that his criminal

background was so over-represented by his designation as a career

criminal as to put him beyond the normal case in which the career-

offender classification comes into play. He cannot make such a

showing. A defendant is a career offender:

if (1) the defendant was at least eighteen
years old at the time of the instant offense,
(2) the instant offense of conviction is a
felony that is either a crime of violence or a
controlled substance offense, and (3) the
defendant has at least two prior felony
convictions of either a crime of violence or a
controlled substance offense.

U.S.S.G. § 4B1.1. A felony qualifies as a crime of violence if the

permissible term of imprisonment exceeds one year, and the crime

“has as an element the use, attempted use or threatened use of

physical force against another” or involves burglary of a dwelling,

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arson, extortion, the use of explosives, or otherwise presents a

“serious potential risk of physical injury to another.” U.S.S.G.

§ 4B1.2.

All parties agree that Mr. Gendraw’s convictions for

armed home invasion and witness intimidation qualify as crimes of

violence, as does his conviction for attempt to commit larceny from

a person. Mr. Gendraw argues, however, that because these

convictions did not involve egregious behavior and because they

occurred over ten years ago, his designation as a career offender

overstates his criminal history and therefore exaggerates his

danger of recidivism. We do not find this argument persuasive.

Even assuming that these qualifying convictions, when

considered alone, are so trivial and remote as to render Mr.

Gendraw’s case exceptional, Mr. Gendraw’s argument faces an

insurmountable hurdle because these are not his only convictions.

Mr. Gendraw has been convicted of six other crimes, many of which

were committed while he was on probation. It is true that many of

these convictions would not qualify him as a career offender and

that we do not consider them in placing him in this category, but

we cannot disregard them when trying to decide whether his

designation so overstates his criminal history as to qualify him

for a downward departure. He has been given the benefit of the

doubt many times, yet he has wholly failed to reform himself.

Given that Mr. Gendraw has so many convictions, there is simply no

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merit to his assertion that his designation as a career offender

overstates his criminal history. We observe, in addition, that

defendant’s remoteness-in-time argument is weak. A considerable

amount of time did pass between the defendant’s last offense and

his commission of the crime for which he is now being prosecuted,

but the defendant was imprisoned during much of that time, with no

opportunity to commit new crimes against the public.

In light of this conclusion, remanding this case would be

pointless, as any decision by the District Court granting a

downward departure would have to be reversed.1 The District

Court’s refusal to grant Mr. Gendraw a downward departure is,

therefore, affirmed.

1
At oral argument, the United States asked this Court to
address the question of whether any such ruling would be subject to
de novo or abuse-of-discretion review in light of the PROTECT Act,
Pub. Law No. 108-21 Sec. 401(d), 117 Stat. 650 (2003) (mandating de
novo review of all downward departures). Because we feel that any
downward departure would require reversal under either standard, we
need not address this question.

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