United States v. Rodriquez

United States Court of Appeals
For the First Circuit

No. 02-1861

UNITED STATES OF AMERICA,

Appellee,

v.

CARLOS RODRÍGUEZ,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

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

Before

Boudin, Chief Judge,

Selya and Lipez, Circuit Judges.

Peter B. Krupp, by appointment of the court, with whom Lurie
& Krupp, LLP was on brief for appellant.
Denise Jefferson Casper, Assistant United States Attorney,
with whom Michael J. Sullivan, United States Attorney, was on brief
for appellee.

April 30, 2003
 BOUDIN, Chief Judge. The issue on this appeal is whether

the district court's refusal to depart downward under the sentencing

guidelines is reviewable. Carlos Rodriguez pled guilty on August

29, 2001, to possession of heroin with intent to distribute. 21

U.S.C. § 841(a)(1) (2000). In his plea agreement, he admitted

making two sales, totaling 16.68 grams of heroin. Because Rodriguez

had two prior convictions for drug offenses, he qualified as a

career offender under U.S.S.G. § 4B1.1, making his guideline range

151-188 months. If he had not been a career offender, the range

would instead have been 18-24 months.

Before sentencing, Rodriguez sought a downward departure

for three reasons: that he had acted with a significantly reduced

mental capacity, U.S.S.G. § 5K2.13; that the career offender

category overstated his risk of recidivism, U.S.S.G. § 4A1.3; and

that he was especially vulnerable to prison abuse as "an effeminate

gay man," see Koon v. United States, 518 U.S. 81, 111-12 (1996).

The government opposed the request, arguing primarily that the facts

of this case did not warrant a downward departure.

At sentencing on June 12, 2002, the court said to defense

counsel: "You make a compelling argument. But I think what, it

seems to me that your argument relates to where in the scale, you

know . . . the Sentencing Guidelines, where in the scale you fall.

I mean, it seems to me that is where you are." The court then went

on to say, "I think you are making a very good argument for a

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sentence at the low end of the guidelines." After further

discussion, the court stated that it would not grant the downward

departure:

The Court: Okay. I am going to deny the motion
for downward departure. And I am going to do
it on the basis that I don't believe I have, on
this record that I have authority which raises
an appellate issue for you if you care to take
advantage of it. So I am denying it, as I say,
because I don't feel as though I have authority
on this record to grant it. So that leaves us
with the recommendation of 151 months; is that
it?

Defense Counsel: Your Honor, just for
clarification on the Court's record, is the
Court ruling that as a matter of law given
what's before the Court that the Court does not
have discretion to depart downward?

The Court: Yes.

...

Government: Your Honor, if I could ask for a
clarification. Is it the Court's position that
you don't have authority as to each of the
separate grounds?

The Court: Yes. Taken in its totality I don't
have the authority to grant the defendant's
motion for any of the reasons that are stated.

The district court then sentenced the defendant to 151

months' imprisonment, the minimum allowed within the guideline

range. The defendant has now appealed, arguing that the judge

mistakenly thought that he did not have legal authority to depart on

any of the grounds presented. At the threshold, the appeal presents

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the recurring issue of our authority to review the refusal to

depart.

By statute, 18 U.S.C. 3742(a) (2000), refusals to depart

are largely unreviewable. United States v. Vasquez, 279 F.3d 77, 79

(1st Cir. 2002); United States v. Tucker, 892 F.2d 8, 9-11 (1st Cir.

1989). In this circuit, an appellate court cannot review an alleged

factual error, United States v. Dewire, 271 F.3d 333, 337-40 & n.5

(1st Cir. 2001), or a discretionary decision not to depart on the

facts of the particular case, even if allegedly unreasonable, United

States v. La Guardia, 902 F.2d 1010, 1012 (1st Cir. 1990). This is

an unusual restriction but follows the historic pre-guideline

practice.

Despite the statute, the courts have held that they can

review a refusal to depart where the refusal rests upon a legal

mistake, such as a mistaken assumption that a particular ground is

generically impermissible as a basis for a departure. Vasquez, 279

F.3d at 79. Review in such cases is de novo. United States v.

Louis, 300 F.3d 78, 81 (1st Cir. 2002). The initial question here

is whether the district court's refusal to depart rested on a legal

determination at all, regardless of its correctness.

The district court's statement of its reason for denying

a departure is ambiguous. Specifically, the district court's

statements taken together could mean that, in the court's view,

none of the reasons offered for a departure fell within a legal

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category allowing departures. Alternatively, they could mean that

one or more reasons did (or might) fall in such a category allowing

departures but, on the facts of the case, the judge was not

persuaded to grant a departure (e.g., because the judge did not

think that the factor or factors were present to a degree that would

justify a departure).

In either case, a court might express itself, as the

district judge did in this case, by saying that he did not have the

"authority" to depart. The difficulty is that one of the two likely

meanings presents an issue of law for review by the appellate court

de novo and the other does not permit appellate review at all.

Often it is clear enough from other remarks or the surrounding

circumstances which meaning the district court intended, e.g.,

United States v. LeBlanc, 24 F.3d 340 (1st Cir.), cert. denied, 513

U.S. 896 (1994); but where there is serious doubt, often the remedy

is to remand, United States v. Russell, 870 F.2d 18, 20-21 (1st Cir.

1989), unless the ground or grounds asserted are categorically

unavailable and a remand would be a waste of time.

In this instance, one might conjecture that the district

court thought that the three reasons offered were available

categories for a departure and was simply making a discretionary

decision not to depart. Two of the three grounds are well-

established; the third ground has an undoubted basis in the

guidelines, although the government has an argument (which we do not

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reach) as to why it is categorically inapplicable in this case. In

addition, the district court's introductory comments quoted above,

made before the formal denial, suggested that it doubted whether the

factors were present to a degree warranting a departure.

On the other hand, the district court also invited the

defendant to appeal. Under well-established law, the defendant may

not do so if the district court meant that, although the types of

reasons given were permissible, the circumstances were not present

to a degree that persuaded the district court to grant a departure.

This could suggest that the district court thought that a ground

that it could otherwise rely upon to grant a departure was

categorically unavailable, although nothing in the remarks from the

bench indicates what ground this was or what precise legal doubts

were entertained by the district court.

The government urges us to affirm anyway, arguing in

substance that none of the reasons given--even if categorically

permissible--is present to a degree that would warrant a departure.

Although a refusal to depart on discretionary grounds is normally

unreviewable, a departure (upward or downward) is reviewable for

abuse of discretion. Vasquez, 279 F.3d at 79. So the government,

in substance, is asking us to look at the circumstances of this case

and conclude that a departure would be an abuse of discretion and

thus that a remand would be a fruitless gesture.

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 In some cases this could be an appropriate ground for an

affirmance, but it can cast a significant burden on the reviewing

court, which we see no reason to carry in this case. To resolve

this issue, we would have to imagine the precise facts that the

district court would find pertinent to each of the three grounds--

since it might in theory rely on any of the three--and then further

imagine how it would explain the basis for its judgment that the

degree or character of the showing persuaded the district court that

the case was sufficiently exceptional to justify a departure. And,

as to both, the matter is further complicated because under current

law we would owe some deference to the district court's factual

findings and reasoning, although not its legal judgments. Koon, 518

U.S. at 98.

It will be easy on remand for the district court to say,

as to each of the three grounds, whether its decision rests on a

categorical rejection of the reason offered because the court deems

it legally unavailable (or conceivably because of some other legal

rule bearing on the availability of the ground) or whether,

accepting or at least not categorically rejecting the ground, it

thinks that "degree," lack of persuasive proof, or like

considerations do not warrant a departure. It is then free to re-

sentence and, if either side is dissatisfied, that side can appeal--

assuming there is an appealable issue.

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 Terseness is doubtless a virtue in a busy district court;

but saying that the court does not have the "authority" to depart is

perhaps just a shade too terse. Sometimes a district judge may be

tempted to give the heavily sentenced defendant some small comfort

by telling him that he can appeal the sentence, even if the court

intends only a discretionary and thereby unappealable denial of a

requested departure. But these comments do not help the defendant

in the end and only serve to create confusion on the appeal and more

work on remand.

The judgment is vacated solely as to the sentence and the

matter remanded for resentencing consistent with this decision.

It is so ordered.

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