UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 93-1826
UNITED STATES OF AMERICA,
Appellant,
v.
MICHAEL JACKSON,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Francis J. Boyle, Senior U.S. District Judge]
Before
Selya and Cyr, Circuit Judges,
and Pettine,* Senior District Judge.
Margaret E. Curran, Assistant United States Attorney, with
whom Edwin J. Gale, United States Attorney, and Gerard B.
Sullivan, Assistant United States Attorney, were on brief, for
the United States.
July 19, 1994
*Of the District of Rhode Island, sitting by designation.
SELYA, Circuit Judge. We chronicle today one more
SELYA, Circuit Judge.
vignette that forms a part of "the seemingly endless line of
criminal appeals marching stolidly to the beat of the federal
sentencing guidelines." United States v. Ocasio-Rivera, 991 F.2d
1, 2 (1st Cir. 1993). Concluding, as we do, that the
circumstances relied upon by the court below are insufficient to
warrant a downward departure from the guideline sentencing range
(GSR), we vacate the sentence previously imposed on defendant-
appellee Michael Jackson and remand for sentencing.
I. BACKGROUND
On April 19, 1993, a jury convicted appellee of
possessing cocaine with intent to distribute the drug, 21 U.S.C.
841(a)(1) (1988); being a felon in possession of a firearm, 21
U.S.C. 922(g) (1988); and using a firearm during and in
relation to a drug trafficking crime, 18 U.S.C. 924(c) (1992).
Since, these convictions formed the tail end of an extensive
criminal record that included convictions for several crimes of
violence, appellant qualified for enhancement of his sentence
under 18 U.S.C. 924(e) (1988).
At the disposition hearing, the district court found
appellee to be an armed career criminal within the meaning of
U.S.S.G. 4B1.4(a) (Nov. 1992) (instructing that "[a] defendant
who is subject to an enhanced sentence under the provisions of 18
U.S.C. 924(e)" is to be so regarded). Factoring in appellee's
status as an armed career criminal and making other standard
adjustments, the court calculated the GSR to be 262-327 months
2
(offense level 34, criminal history category VI). In addition,
the court determined that appellee qualified for a mandatory 5-
year sentence anent the use of a firearm during and in relation
to a drug trafficking crime a sentence which, by law, had to be
tacked onto whatever sentence the court imposed with respect to
the Jackson's conviction under 21 U.S.C. 841(a)(1). See 18
U.S.C. 924(c). In short, the guidelines, departures aside,
forecast a minimum prison term of 27 years.
But the district court did not stay within the GSR.
Instead, it spontaneously departed, sentencing appellee to an
aggregate 20-year prison term (a total of 15 years on the drug
trafficking and felon-in-possession counts, as enhanced pursuant
to 18 U.S.C. 924(e), plus a 5-year consecutive sentence
pursuant to 18 U.S.C. 924(c)). The court premised the downward
departure on the rationale that an incarcerative sentence within
the parameters set by the GSR would be tantamount to "a life
sentence" for, the court said, in view of Jackson's age (40), it
would be "unlikely" that he would "ever see any light outside of
prison." The court added:
I just happen to think that this is not the
kind of thing the sentencing commission may
have had in mind. . . . It seems to me that
this is one of those circumstances where what
[the defendant] did was terribly wrong but
not so wrong that a life sentence is
appropriate. . . . I am going to depart out
of a concern for the system of justice.
3
The government now appeals.1 It argues that the
sentencing court's stated reasons are legally insufficient to
warrant a downward departure. We agree.
II. DEPARTURES FROM THE GUIDELINES
The basic theory behind the sentencing guidelines is
that, in the ordinary case, the judge will apply the guidelines,
make such interim adjustments as the facts suggest, compute a
sentencing range, and then impose a sentence within that range.
See 18 U.S.C. 3553(a)(b) (1988); see also United States v.
Rivera, 994 F.2d 942, 946 (1st Cir. 1993); United States v. Diaz-
Villafane, 874 F.2d 43, 47-48 (1st Cir.), cert. denied, 493 U.S.
862 (1989).
Departures are the exception, not the rule. See Diaz-
Villafane, 874 F.2d at 52. Thus, it is only in the extraordinary
case the case that falls outside the heartland for the offense
of conviction that the district court may abandon the guideline
sentencing range and impose a sentence different from the
sentence indicated by mechanical application of the guidelines.
See Rivera, 994 F.2d at 947-48. One relatively common basis for
departure arises when 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 that should result in a
1Despite due notice, appellee has neither filed a brief nor
applied for the appointment of counsel on appeal. Hence, only
the government presented oral argument. See Fed. R. App. P.
31(c); 1st Cir. R. 45.
4
sentence different from that described." 18 U.S.C. 3553(b);
see also U.S.S.G. 5K2.0 (implementing statute); see generally
Rivera, 994 F.2d at 946; Diaz-Villafane, 874 F.2d at 49.2
It is clear that the guidelines are intended to
alleviate disparity in sentencing and to make it reasonably
likely that similarly situated offenders will receive comparable
punishments, regardless of where they are prosecuted or which
judge presides at sentencing. See S. Rep. No. 225, 98th Cong.,
2d Sess. 38, 51, 161 (1984), reprinted in 1984 U.S.C.C.A.N. 3182,
3221, 3234, 3344 (explaining need for sentencing guidelines "[in]
order to lessen the degree to which different judges impose[]
different sentences in comparable cases"); Charles J. Ogletree,
Jr., The Death of Discretion? Reflecting on the Federal
Sentencing Guidelines, 101 Harv. L. Rev. 1938, 1944 (1988)
(noting that sentencing reform came about largely in response to
"frequent criticism of the broad discretion afforded federal
judges in sentencing [which] led to disparate treatment for
similarly situated individuals"); see also Rivera, 994 F.2d at
946; United States v. Aguilar-Pena, 887 F.2d 347, 352 (1st Cir.
1989). Ensuring uniformity inevitably means restricting judicial
discretion, for, as we have stated, "[g]iving judges free rein to
forsake the guidelines in cases falling within the heartland for
2The other mainstay of departure jurisprudence involves the
defendant's "substantial assistance" to the government. See 18
U.S.C. 3553(e) (1988); 28 U.S.C. 994(n) (1988); see also
U.S.S.G. 5K1.1 (implementing statute); see generally United
States v. Mariano, 983 F.2d 1150, 1155-57 (1st Cir. 1993). This
appeal does not require us to delve into the intricacies of
substantial assistance.
5
a given offense would be tantamount to judicial repudiation of
the Sentencing Reform Act and the important policies which
propelled its enactment." Aguilar-Pena, 887 F.2d at 352.
Consequently, while the power to depart offers judges a modicum
of flexibility in criminal sentencing, this power can only be
exercised for reasons that the guidelines themselves endorse.
In reviewing the legitimacy of departures from the
guidelines, appellate courts are expected to engage in a
tripartite analysis. See Rivera, 994 F.2d at 950-52; Aguilar-
Pena, 887 F.2d at 350; Diaz-Villafane, 874 F.2d at 49. The first
step requires an evaluation of the circumstances relied on by the
lower court in determining that the case is sufficiently
"unusual" to warrant a departure. Aguilar-Pena, 887 F.2d at 350.
That question is one of law, evoking plenary appellate review
shorn of deference to the court below.3 See Diaz-Villafane, 874
F.2d at 49.
To guide judicial consideration of departures at this
stage, we have suggested that a sentencing court should analyze a
case along the following lines:
(1) What features of the case, potentially,
take it outside the Guidelines' "heartland"
and make it a special, or unusual case? (2)
Has the Commission forbidden departures based
on those features? (3) If not, has the
3For present purposes, we need not progress past the initial
step. In the interest of completeness, however, we note that, if
the stated circumstances pass muster, the next step requires a
reviewing court to determine whether those circumstances are
adequately documented in the record. See Aguilar-Pena, 887 F.2d
at 350. Finally, the court must gauge the departure's
reasonableness. See id.
6
Commission encouraged departures based on
those features? (4) If not, has the
Commission discouraged departures based on
those features?
Rivera, 994 F.2d at 949. If the case is not "special" or
"unusual" a condition which, for simplicity's sake, we shall
call "atypical" then the court may not depart under section
5K2.0. If the case is atypical, that is, if it falls outside the
heartland for the offense of conviction, the court must then
focus on the nature of the atypicality and its place in the
departure hierarchy. If the case is atypical only because of the
presence of a feature that comprises a "forbidden" ground, the
sentencing court may not depart. If the atypicality stems from
an "encouraged" ground, the court may (and most likely will)
depart. If the atypicality consists of a ground for departure
that is neither "forbidden" nor "encouraged," but is simply
"discouraged," then the court must take a long, hard look to
determine whether the case differs significantly from the
ordinary case in which the particular atypicality is present.
See Rivera, 994 F.2d at 949.
III. ANALYSIS
Here, the primary factors relied on by the district
court are the defendant's age and the length of the sentence
dictated by the guidelines. Neither ground justifies a downward
departure.
A. Age.
Age is among the various specific offender
characteristics that the guidelines treat as "discouraged" for
7
purposes of a departure. In other words, age is a factor "not
ordinarily relevant" to the departure calculus. U.S.S.G. 5H1.1,
p.s.; accord Rivera, 994 F.2d at 948; United States v. Norflett,
922 F.2d 50, 54 (1st Cir. 1990); see also United States v. Jones,
18 F.3d 1145, 1149-50 (4th Cir. 1994) (explaining that the
Sentencing Commission adequately considered age in formulating
the sentencing guidelines). And Jackson's age 40 is surely
not sufficiently "special" or "unusual" to ferry the case outside
the heartland for the offenses of conviction.
Moreover, precedent teaches that the interrelationship
between Jackson's age and the length of the prospective sentence
does not furnish an adequate legal reason upon which to ground a
departure. For example, in United States v. Doe, 921 F.2d 340
(1st Cir. 1990), we rejected virtually the same proposition on
closely comparable facts. There, the district court declined to
depart downward and, instead, imposed a 30-year sentence on a 54-
year-old man. On appeal, the defendant asserted that the
district court erred, inter alia, by "fail[ing] to consider
whether a `life sentence' is appropriate punishment for th[e]
crime." Id. at 347. We found no merit to this assertion. See
id. By like token, in Norflett, 922 F.2d at 54, we held that
there was nothing sufficiently unusual about a 34-year-old
defendant facing a sentence of approximately 17 years as to
authorize a downward departure. Our sister circuits regularly
have ruled to like effect. See, e.g., United States v. Goff, 20
F.3d 918, 921 (8th Cir. 1994) (remarking that the court has
8
consistently denied departures to healthy offenders in the age
group of a 67-year-old defendant); United States v. Madison, 990
F.2d 178, 183 (5th Cir.) (explaining that age has been virtually
eliminated as a mitigating sentencing factor), cert. dismissed,
114 S. Ct. 339 (1993); United States v. Anders, 956 F.2d 907, 912
(9th Cir. 1992) (rejecting age-based ground for departure in a
case involving a 46-year-old offender), cert. denied, 113 S. Ct.
1592 (1993); United States v. Daiagi, 892 F.2d 31, 33-34 (4th
Cir. 1989) (acknowledging that age has been largely eliminated as
a mitigating factor); cf. United States v. White, 945 F.2d 100,
101-02 (5th Cir. 1991) (holding that youthfulness per se is not a
sufficient reason for a downward departure).4
In sum, the departure that the lower court essayed
cannot be salvaged on the basis of either the defendant's age or
the interrelationship between the defendant's age and the
anticipated length of his sentence.
B. Excessiveness.
We now come to the crux of the district court's
reasoning: its apparent dissatisfaction with the severity of
sentencing options available within the GSR. The judge concluded
that, given appellant's age, a 27-year aggregate sentence would
be the functional equivalent of life imprisonment and, therefore,
too harsh to fit the crime. These conclusions led the judge, to
4To be sure, the guidelines permit consideration of the age
of a mature defendant as a ground for departure "when the
offender is elderly and infirm . . . ." U.S.S.G. 5H1.1
(emphasis in original). But Jackson is not elderly and the
district court received no evidence of any cognizable infirmity.
9
use his own words, to "depart out of a concern for the system of
justice." Though we appreciate the judge's humanitarian
instincts, and do not doubt his sincerity, we regard the stated
basis for departure as forbidden.
It is firmly settled that, absent specific
circumstances independently justifying a departure, a judge
cannot sentence outside a properly computed sentencing range
merely because he believes that the guidelines work too severe a
sanction in a particular case.5 See Norflett, 922 F.2d at 53
("That the district court thinks the GSR too harsh in a given
case does not by itself warrant a downward departure."); United
States v. Studley, 907 F.2d 254, 260 (1st Cir. 1990) ("Regardless
of how well founded, a belief by the sentencing judge that the
punishment set by the [Sentencing] Commission is too severe or
that the guidelines are too inflexible may not be judicial
grounds for departure."); Aguilar-Pena, 887 F.2d at 353
("Judicial dissatisfaction alone, no matter how steeped in real-
world wisdom, cannot be enough to trigger departures, lest the
entire system crumble.").
Norflett closely parallels the situation at hand.
There, in a case involving a career offender, the sentencing
court departed downward because it thought that sentencing the
defendant within the GSR would "constitute a miscarriage of
5By the same token, a judge is equally powerless to depart
solely because he believes that the guidelines provide
insufficient punishment. See United States v. Cox, 921 F.2d 772,
774 (8th Cir. 1990).
10
justice." Norflett, 922 F.2d at 52. We reversed, holding that
perceived excessiveness is not a viable basis for a downward
departure. See id. at 53. In the process, we cautioned that,
under the sentencing guidelines, judges are no longer free to act
upon their own views whenever they think that "the GSR [is]
incommensurate to the crime." Id. To the contrary, judges "must
subrogate personal views [about what sentences are too severe or
too lenient] to the Congress' sense of how best to achieve
uniformity." Id.
This monition has particular force in career offender
and armed career criminal cases, for Congress has very
specifically directed the Sentencing Commission to ensure that
the guidelines provide for severe incarcerative sentences in such
cases. See 28 U.S.C. 994(h) (1988) (directing courts in career
offender cases to impose sentences "at or near the maximum term
authorized [by law]"); 18 U.S.C. 924(e) (directing courts in
armed career criminal cases to impose a minimum sentence of
imprisonment for fifteen years without the possibility of
suspension, probation or parole). Such policy choices are for
Congress, not the courts, to make. And when, as now, the
legislative trumpet sounds clearly, courts are duty bound to
honor the clarion call. See Norflett, 922 F.2d at 53; United
States v. Williams, 891 F.2d 962, 964 (1st Cir. 1989); see also
United States v. Gonzalez-Lopez, 911 F.2d 542, 551 (11th Cir.
1990) (in considering a career offender case, "a court cannot
depart because it believes a sentence is excessive"), cert.
11
denied, 500 U.S. 933 (1991). While we are not without empathy
for our concurring brother's views, we are also mindful that the
courts' role "is as interpreters of the words chosen by Congress,
not as policymakers or enlargers of congressional intent."
United States v. Gibbens, F.3d , (1st Cir. 1994) [No.
93-2203 slip op. at 12]. So, too, the courts' role vis-a-vis the
Sentencing Commission, so long as the Commission acts within the
scope of its statutory authorization.
IV. CONCLUSION
We need go no further. The short of it is that, in the
instant case, neither the defendant's age, the prospective
duration of his immurement, nor any combination of these factors
are "mitigating circumstance[s] 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." 18 U.S.C. 3553(b). It follows
inexorably that the circumstances relied upon by the district
court are inadequate to support a downward departure.
Consequently, the defendant's sentence must be vacated. The
district court, on remand, shall hold a new sentencing hearing,
at which it remains free to consider departure for other, legally
adequate reasons (if any are shown). See United States v.
Limberopoulos, F.3d , (1st Cir. 1994) [No. 92-1955,
slip op. at 3-4, 14].
Vacated and remanded for resentencing.
12
Concurring opinion follows
13
PETTINE, Senior District Judge, concurring. The
PETTINE, Senior District Judge, concurring
demands and strictures of the United States Sentencing Guidelines
("the guidelines"), and the limits that the guidelines place upon
federal district court judges, constrain me to write a separate
opinion in this case. I find the logic of Judge Selya's able
opinion to be unassailable, and I must agree with him that
"absent specific circumstances independently justifying a
departure, a judge cannot sentence outside a properly computed
sentencing range merely because he believes that the guidelines
work too severe a sanction in a particular case." Maj. op. at 9-
10. Although I cannot argue with my colleague's analysis of what
the guidelines require, I find myself taking great exception to
the mechanical sentencing that the guidelines force upon judges,
and I find it painful to adhere to this impersonal and cold-
blooded process.
In this case, the district court spontaneously departed
downward based on the belief that, for this forty year old
defendant, the twenty-seven year sentence required under the
guideline range was tantamount to a life sentence. At the
Sentencing Hearing, the court articulated its belief that "I just
happen to think that this is not the kind of thing the sentencing
commission may have had in mind." Tr., 6/25/93 at 34. However,
a review of the case law has revealed no precedent teaching that
the combination of age and a lengthy sentence, resulting in a de
facto life sentence, supports a downward departure. As Judge
Selya points out, the guidelines treat age as a discouraged
14
offender characteristic for purposes of a downward departure, and
the interrelationship between age and length of sentence has not
been considered adequate justification for a downward departure.
Furthermore, I have been unable to find any statutory language or
legislative history that indicates that Congress or the United
States Sentencing Guidelines Commission ("the Commission") has
ever considered this problem. Indeed, given the frequency with
which the guidelines result in sentences of numerous decades,
combined with the fact that forty year old defendants are not
uncommon, logic would seem to dictate that the members of the
Commission were unconcerned about de facto life sentences. In
any case, given the dearth of documentation as to the state of
mind of the Commissioners, the only conclusion that I can
reasonably reach is that it is impossible to determine what, if
anything, the Commission intended with regard to this issue.
Thus, I must reluctantly conclude that there is no way
for me to dissent from the majority opinion in this case and
still remain faithful to the ideal of intellectual honesty, an
ideal which must always be controlling in any judicial opinion
and which I have always treasured. Legal precedent that supports
Judge Boyle's downward departure is simply nonexistent. However,
my careful and painstaking reflection over the consequences of
the proper application of the guidelines in this case, as well as
my many experiences with the guidelines in the years since their
enactment, leave me overwhelmingly convinced that, except for
increased uniformity of sentences, the sentencing guidelines are
15
a failed experiment.
With regard to the results of the application of the
guidelines in this case, I wholeheartedly subscribe to Judge
Boyle's sentiment that a term of years amounting to a de facto
life sentence reaches beyond that which is appropriate for crimes
committed by the defendant in the instant case. As a like-minded
judge articulated in a factually similar case, "The majority
decision ignores what is truly obvious - that the portion of a
sentence which goes beyond the defendant's lifespan can serve no
retributive, deterrent, rehabilitative or any other proper
function of a prison sentence." United States v. Thornbrugh, 7
F.3d 1471, 1475 (10th Cir. 1993) (Bright, J., dissenting).
As far as the guidelines in general are concerned, I
believe that their greatest weakness lies in their mechanical
nature. "A system that fails to consider the offender's personal
characteristics places too great an emphasis on the harm caused
by the offender's act and too little emphasis on circumstances
that would serve to mitigate the punishment. The Commission
should have realized that it is a person who stands before the
bar to accept the punishment imposed by the court." Charles J.
Ogletree, Jr., The Death of Discretion? Reflecting on the
Federal Sentencing Guidelines, 101 Harv. L. Rev. 1938, 1953
(1988).
Unfortunately, when trial judges depart from the
guidelines, appellate courts are fettered in their review of the
litigation. As in this case, they have little or no choice but
16
to react to such departure in a rigid fashion. In distinction to
one commentator, I feel they are "[unable] to balance the distant
guidance of a bureaucracy against the detailed responsibility of
the individual sentencer." Daniel J. Freed, Federal Sentencing
in the Wake of the Guidelines: Unacceptable Limits on the
Discretion of Sentences, 101 Yale L. J. 1681, 1730 (1992).
Furthermore, I find the authority given by the guidelines to
United States Attorneys, enabling them to control the sentencing
process, to be entirely inappropriate and an invasion of the
historical role of judges as the final arbiters of justice.
Incredibly, we now have the inflexible prosecutorial mind which,
all too often, caters to public passion, dictating sentencing
parameters. "Discretionary decisions of Assistant U.S.
Attorneys, both as to charges and as to factual allegations, can
powerfully expand or limit the judge's ambit for sentencing."
Id. at 1723.
I have struggled with this case and feel compelled to
voice my feelings. My sense of justice and my twenty-eight years
of experience as a district court judge sitting in criminal
cases, preceded by five years as U.S. Attorney and thirteen years
as a state prosecutor, all lead me to believe that Judge Boyle's
actions in this case were absolutely correct. Judge Boyle acted
as a judge, drawing upon his life experience and his judicial
experiences, making his decision not simply by working the grid
provided by the guidelines, but by balancing the impact of the
law upon an individual human being, given that human being's
17
particularized circumstances, against the protection of society.
He recognized the face behind the law. He declined to function
merely as an automaton.
The mandates of the guidelines may have accomplished
uniformity of sentencing but they have done so by tragically
eroding the sacred function of a judge in the sentencing process.
This sacred function is a most complex, difficult, nebulous and
at times undefinable burden, and it must always be met in the
context of the unique setting at hand.
In considering this case, I have very seriously thought
about recusing myself from all future criminal cases. I have
found this decision an excruciatingly difficult one to make, but
I have chosen to continue to hear criminal cases. It is
established that a judge's view on the subject matter of
litigation does not require recusal. Laird v. Tatum, 409 U.S.
824 (1972). The very nature of my criticism and reaction to this
case is abundant recognition of my duty to follow the rules where
there is no room for intellectually honest dissent. Furthermore,
I believe passage of the pending Violent Crime Control and Law
Enforcement Act of 1993 may seriously increase this court's
criminal caseload. When I took senior status twelve years ago at
age seventy, I solemnly declared that I would carry a full
caseload. When the time comes that I can no longer do so as
vigorously and effectively as my younger esteemed colleagues, I
will at that point end my judicial service. Thus, because my
recusal would significantly burden my colleagues, and because I
18
recognize the controlling nature of the guidelines even while I
object to their substance, I choose to maintain a criminal
docket.
With the foregoing statement, I offer no dissent to
Judge Selya's well written opinion.
19