United States v. Sicken

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
AUG 15 2000
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff - Appellant,
v. No. 99-1166
DANIEL HARRIS SICKEN;
OLIVER SACHIO COE, also known
as Oliver Hydon,

Defendants - Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. No. 98-CR-339-WM)

Sean Connelly, Assistant U.S. Attorney (Thomas L. Strickland, United States
Attorney, and Bernard E. Hobson, Assistant U.S. Attorney, with him on the brief),
Denver, Colorado, for Plaintiff-Appellant.

Scott Poland of Poland & Wheeler, Lakewood, Colorado, and Richard N. Stuckey,
Denver, Colorado, for Defendants-Appellees.

_________________________

Before BRORBY, McKAY, and BRISCOE, Circuit Judges.
_________________________

McKAY, Circuit Judge.
_________________________
 The United States appeals the district court’s four-level downward

departure in sentencing two anti-nuclear protestors who broke into and damaged a

secured intercontinental ballistic missile site. Pursuant to 18 U.S.C. § 3742(b),

the government challenges the ability of the district court to depart downward.

We exercise jurisdiction pursuant to 28 U.S.C. § 1291.

I.

Defendants Daniel Harris Sicken and Oliver Sachio Coe are anti-nuclear

protesters and members of an organization called the Plowshares Movement. On

August 6, 1998, they broke into an unmanned nuclear missile facility in Weld

County, Colorado, by cutting barbed wire and scaling a fence. Operated by the

United States Air Force, the facility contained a Minuteman III intercontinental

ballistic missile capable of being armed with three separate nuclear warheads. At

trial, Defendants stated that their purpose in breaking into the site was to perform

an anti-nuclear protest by “disarm[ing] nonviolently and symbolically.” R., Vol.

4 at 416. Once on the grounds of the facility, Defendants used sledgehammers

and chisels to damage components of the site, including an electrical junction

box, the concrete blast door to the underground missile silo, and the rails on

which the blast door moved. They also poured water into a circuit and a security

pit, hung banners, and used spray paint mixed with blood to paint slogans and

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designs on site components. After committing these acts, Defendants waited on

the site for military authorities to arrive and arrest them. Their actions caused

approximately $21,000 in damages, and repairs were estimated to take about 410

work hours.

On October 8, 1998, Defendants were charged with three counts in a

superseding indictment: (1) conspiracy to injure, destroy, and contaminate

national defense materials and premises of the United States with intent to injure,

interfere with, and obstruct the national defense of the United States in violation

of 18 U.S.C. § 2155; (2) willful and unlawful destruction of national defense

materials and premises in violation of 18 U.S.C. § 2155(a), otherwise known as

sabotage; and (3) willful and unlawful destruction of United States property in

violation of 18 U.S.C. § 1361. Defendants were tried by a jury and convicted on

all counts.

In sentencing Defendants, the district court adopted the findings and

recommendations of the presentence report. Section 2M2.3 of the United States

Sentencing Guidelines sets the base offense level at twenty-six for counts one and

two. The applicable guideline for count three is U.S.S.G. § 2B1.3, which sets the

offense level at four. Because the three counts were closely related, i.e., they

involved substantially the same harm, victim, and act, they were grouped together

under § 3D1.2(a). According to § 3D1.3(a), the highest offense level (twenty-six

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under § 2M2.3(a)) applied. The court then reduced Defendants’ base offense

levels by three levels to twenty-three for Defendants’ acceptance of responsibility

under § 3E1.1. See R., Vol. 6 at 15. Consequently, Mr. Sicken had an offense

level of twenty-three and a criminal history category III, resulting in a sentencing

range from fifty-seven to seventy-one months. See id., Vol. 1, Doc. 85 at 7; Vol.

6 at 16. Mr. Coe also had an offense level of twenty-three, but his criminal

history category was I, which resulted in a sentencing range from forty-six to

fifty-seven months. See id., Vol. 1, Doc. 84 at 7; Vol. 6 at 15.

The district court rejected Defendants’ arguments for sentencing under the

property damage charge, 18 U.S.C. § 1361, rather than the sabotage charge, and

for downward departures based on the lesser harm guideline, U.S.S.G. § 5K2.11,

and the “coercion and duress” guideline, § 5K2.12. See R., Vol. 6 at 34-38.

However, the court asked the parties to brief whether a departure under U.S.S.G.

§ 5K2.0 was proper where aggravating or mitigating circumstances are not

adequately considered by the applicable guideline, § 2M2.3. The court was

concerned with the fact that § 2M2.3 did not recognize differences in conduct and

thus did not provide any adjustments based on the severity of offense conduct.

See id. at 39 (stating that destroying an “enormous bomber” or merely painting or

damaging the surface of “some facility connected with defense” would be treated

the same).

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 After reviewing the materials submitted by the parties, including the only

case where civilian anti-nuclear protesters were sentenced under 18 U.S.C.

§ 2155, United States v. Kabat, 797 F.2d 580 (8th Cir. 1986), and a 1997

proposed but unadopted amendment to U.S.S.G. § 2M2.3 in which upward and

downward departures for sabotage were discussed, see Sentencing Guidelines of

the United States Courts, 62 Fed. Reg. 152, 196 (1997) (proposed Jan. 2, 1997),

the court concluded that this situation warranted a departure from the offense

level dictated by § 2M2.3.

Specifically, the court stated at the sentencing hearing that if Kabat

“somehow indicates our heartland, it suggests at least that maybe the heartland

doesn’t necessarily include one sentence.” R., Vol. 6 at 40. By this, it appears

that the court was impressed by the gradations in sentences imposed in Kabat.

The court’s decision to depart also was influenced by the fact that the Guidelines

as a whole include “all kinds of gradations” for the severity of offense conduct.

Id. And finally, the court considered the Sentencing Commission’s proposed

1997 amendment to § 2M2.3. Rejecting the government’s argument that the

Sentencing Commission did not adopt the proposed amendment because it

intended to prevent any gradation or variance in sentences, the court reasoned that

“as a matter of general principle . . . the failure to pass some law doesn’t mean

it’s been rejected.” Id. at 42.

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 The court then determined that, applying Koon v. United States, 518 U.S.

81 (1996), departure was neither forbidden nor encouraged. See R., Vol. 6 at 42.

It reviewed the factors articulated in the proposed amendment that might support

or negate a departure, stating that there is a clear difference between “an act of

protest, which this clearly was, in peacetime as opposed to an act of sabotage

during war,” id. at 43; that the acts caused some harm but there was no substantial

risk of death or injury, see id. at 44; and that there was no “truly significant or

substantial” risk to national security. Id. For these reasons, the court granted a

four-level downward departure under § 5K2.0.

In the judgments entered on March 5 and 9, 1999, the court restated its

reasons for departing downward:

Pursuant to U.S.S.G. § 5K2.0, there are mitigating circumstances not
adequately taken into consideration under [the] Guidelines.

1) There is no real historical record to determine the “heartland” of
these cases.

2) [There are no] Offense Severity Gradations in U.S.S.G. § 2M2.3.
[The court] [n]eed[s] to be able to distinguish between the little or no
harm to national security caused by a peace-time protest and the harm
caused by a major destructive act in wartime.

Id., Vol. 1, Doc. 85 at 7; see id., Doc. 84 at 7. The departure resulted in an

offense level of nineteen for each defendant, which reduced their sentence ranges

by sixteen months. The district court imposed concurrent sentences of forty-one

months on Defendant Sicken for each of the three counts, and it imposed

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concurrent sentences of thirty months for Defendant Coe for the same counts.

The court also sentenced each defendant to three years’ supervised release and

ordered each to pay restitution in the amount of $21,299.40.

In challenging the district court’s departure under § 5K2.0, the government

makes several arguments. We address each of these arguments in turn.

II.

The Sentencing Guidelines provide that each guideline carves out a

“heartland,” “a set of typical cases embodying the conduct that each guideline

describes.” U.S.S.G. ch. 1, pt. A, subpt. 4(b). The Guidelines explain that

“[w]hen a court finds an atypical case, one to which a particular guideline

linguistically applies but where conduct significantly differs from the norm, the

court may consider whether a departure is warranted.” Id. As a result, a

sentencing court may depart from the Guidelines and impose a sentence outside

the guideline range where it “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.’” Id. § 5K2.0 (quoting

18 U.S.C. § 3553(b)).

We review a sentencing court’s decision to depart under a unitary

abuse-of-discretion standard which “includes review to determine that the

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discretion [of the district court] was not guided by erroneous legal conclusions.”

See Koon v. United States, 518 U.S. 81, 100 (1996); United States v. Collins, 122

F.3d 1297, 1302 (10th Cir. 1997). According to the Supreme Court, in

promulgating the Guidelines, “Congress did not intend . . . to vest in appellate

courts wide-ranging authority over district court sentencing decisions.” Koon,

518 U.S. at 97. “Rather, Congress meant to ‘establish[ ] limited appellate review’

where ‘district courts retain much of their traditional sentencing discretion.’”

Collins, 122 F.3d at 1302 (quoting Koon, 518 U.S. at 97). However, the Court

stated that “[t]he deference that is due depends on the nature of the question

presented.” Koon, 518 U.S. at 98.

With this statement in mind, this court articulated four inquiries appellate

courts must make in determining whether the district court abused its discretion in

departing from the Guidelines. See Collins, 122 F.3d at 1302-03. They are:

(1) whether the factual circumstances supporting a departure are
permissible departure factors; (2) whether the departure factors relied
upon by the district court remove the defendant from the applicable
Guideline heartland thus warranting a departure, (3) whether the
record sufficiently supports the factual basis underlying the
departure, and (4) whether the degree of departure is reasonable.

Id. at 1303. 1

The first inquiry–whether the factual circumstances supporting departure

1
Only the first and second inquiries are at issue in this case.

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are permissible departure factors–is a legal one to which an appellate court owes

no deference. See Koon, 518 U.S. at 100; United States v. Rivera, 994 F.2d 942,

951 (1st Cir. 1993). In addition, we explained in Collins that where a district

court’s decision to depart involves its determination as to what constitutes a

guideline’s heartland, appellate review would not be deferential because the

question of what constitutes a guideline’s heartland is essentially legal in nature.

See Collins, 122 F.3d at 1303 n.4 (citing Rivera, 994 F.2d at 951, for the

discussion of “the ‘quintessentially legal’ question of what constitutes the

heartland of the child pornography guideline”). However, an appellate court owes

“‘substantial deference’ to the district court’s resolution of the second question,

whether ‘a particular [defendant] is within the heartland given all the facts of the

case.’” Id. at 1303 (citation omitted). This type of essentially factual question

“amount[s] to a judgment about whether the given circumstances, as seen from

the district court’s unique vantage point, are usual or unusual, ordinary or not

ordinary, and to what extent.” Rivera, 994 F.2d at 951; accord Collins, 122 F.3d

at 1303; see also Koon, 518 U.S. at 98 (instructing that a “district court must

make a refined assessment of the many facts bearing on the outcome, informed by

its [unique] vantage point and day-to-day experience in criminal sentencing”).

III.

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 A. The Heartland

Within this framework, the first step in deciding whether a departure is

appropriate is to determine the “heartland” of a particular guideline, i.e., the

conduct embodied by “a set of typical cases” under § 2M2.3. U.S.S.G. ch. 1, pt.

A, subpt. 4(b). The problem facing the district court in this case was that there is

no “set of typical” sabotage cases. The government asserts that the district court

was unable to identify a heartland and that its failure to do so prevents a

departure. This issue is one of first impression in this court.

While we agree that a court must determine what the heartland is so that it

may then ascertain whether the instant case is unusual enough to fall outside that

heartland, we are not persuaded by the government’s argument that the court here

failed in this regard with respect to § 2M2.3. The district court stated that there

was “no real historical record to determine the ‘heartland’ of these cases,” R.,

Vol. 1, Doc. 84 at 7; Doc. 85 at 7, and that “there really just isn’t an ability to

find out” the heartland history. Id., Vol. 6 at 39. By these statements we do not

think that the court meant that there was no heartland for convictions sentenced

under § 2M2.3. Rather, the court recognized that there were no cases which have

in any way defined the heartland for § 2M2.3 and would thereby assist the court

in determining whether a departure was appropriate.

It is indisputable that there is no body of case law involving sentences for

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civilian sabotage under 18 U.S.C. § 2155 and U.S.S.G. § 2M2.3. In fact, there

was very little from which the court in this case could determine a heartland.

According to the parties and our own research, there is only one reported case

involving a successful civilian prosecution for sabotage under § 2155, the Eighth

Circuit’s pre-Guidelines decision in Kabat, 797 F.2d 580.

Nonetheless, the government appears to concede and we agree that every

sentencing guideline has a heartland. In other words, the Sentencing Commission

contemplated that there are or will be cases circumscribed by certain facts which

represent the typical case that each guideline was intended to address. Defining a

heartland, therefore, must begin somewhere, whether by cases that fit within the

heartland or cases that are outside of it. To argue that the first case addressing a

matter cannot, as a matter of law, be outside the heartland is contrary to both

logic and to the mandate of the Guidelines which Koon made clear: District

courts have the most important function in sentencing because they have the

responsibility of determining in the first instance the factual circumstances that

define a particular guideline heartland. See generally Koon, 518 U.S. at 97-99.

We do not read the Guidelines to limit a sentencing court’s analysis of a

particular case before it by preventing it from determining a heartland for the first

case addressing a particular guideline. Certainly, where no other cases

representing a heartland exist, the heartland at least can be partly defined by a

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case that a court determines is atypical.

Because there is no body of law that defines the heartland of § 2M2.3, the

district court examined the language of the guideline itself, the language of

§ 2155, the decision in Kabat, and the Sentencing Commission’s proposed

amendment to § 2M2.3, assessing the type of conduct that would represent the

heartland. It is clear from the context of the court’s entire discussion on

departure that the district court identified, perhaps implicitly, a heartland by

concluding that the guideline’s stated offense level covered situations presenting

significant harm or risk of harm to national defense. Considering the record as a

whole and given the dearth of case law interpreting § 2155 and § 2M2.3 in these

circumstances, we cannot say that this is an erroneous determination of § 2M2.3’s

heartland.

B. Kabat

In the alternative, the government contends that there was no legal basis for

the departure because Defendants’ conduct “[fell] squarely within the heartland of

the sabotage statute and guideline.” Appellant’s Br. at 8. Without making any

attempt to define the heartland, the government argues that this case is within the

heartland because it is so similar to Kabat and Kabat was the only § 2155 case in

existence at the time the Sentencing Commission adopted § 2M2.3.

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 This case is strikingly similar to Kabat. The defendants in Kabat, like

those in this case, broke through a perimeter fence and used a jackhammer to

cause $29,000 in damages to various components at a missile site. They also

hung banners and waited for authorities to arrest them. Despite the factual

similarities between Kabat and this case, the government presents no evidence

that the Sentencing Commission considered Kabat in adopting § 2M2.3 or

established its offense level to somehow reflect the sentences in that case. To the

contrary, we think that the range of sentences imposed in Kabat for the sabotage

and destruction of property charges clouds any relationship between Kabat and

§ 2M2.3. 2 In addition, there was no challenge in Kabat to the sentences imposed

by the district court in that case; the underlying issues concerned the element of

intent to injure national defense and jury instructions. See id. at 584. We are not

persuaded by the government’s argument that Kabat necessarily describes the

heartland of § 2M2.3. If any inference at all is to be drawn from Kabat, we think

the only reasonable one is that gradations in sentences according to severity of

conduct are permissible.

2
For the sabotage and destruction of property counts, the district court in
Kabat imposed consecutive sentences ranging from four years to nine years. See
Kabat, 797 F.2d at 583-84 & n.3.

The Guidelines provide that the minimum sentencing range for a sentence
under § 2M2.3 with a base offense level of 26 and a criminal history category I is
63-78 months (5.25-6.5 years). See U.S.S.G. ch. 5, pt. A (Sentencing Table).

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 C. Grounds for Departure

Finally, the government contends that the district court relied on several

impermissible factors for its departure under § 5K2.0. Though the Guidelines do

not “‘limit the kinds of factors, whether or not mentioned anywhere else in the

guidelines, that could constitute grounds for departure in an unusual case,’”

Koon, 518 U.S. at 93 (quoting U.S.S.G. ch. 1 pt. A, intro. comment. 4(b)), they

list factors that are encouraged and discouraged as bases for departure. 3 The

Guidelines also instruct that “[i]mpermissible factors include forbidden factors,

discouraged factors that are not present to some exceptional degree, and

encouraged factors already taken into account by the applicable guideline that are

not present to some exceptional degree.” Collins, 122 F.3d at 1303. If an

appellate court determines that a district court based a departure on both valid and

invalid factors, the court should remand the case “unless it determines the district

court would have imposed the same sentence absent reliance on the invalid

factors.” Koon, 518 U.S. at 113.

1.

3
The Guidelines list several factors that cannot be bases for departure,
including race, sex, national origin, creed, religion, and socioeconomic status, see
U.S.S.G. § 5H1.10; lack of guidance as a youth, see § 5H1.12; drug or alcohol
dependence, see § 5H1.4; and economic duress, see § 5K2.12.

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 The government first argues that the lack of offense severity gradations in

§ 2M2.3 is not a proper ground for departure. It complains that “[t]he court’s

departure seemingly reflected a personal judgment that the guideline range for

these offenses was too harsh” and that it had no authority to depart merely

because it disagreed with the Guidelines. Appellant’s Br. at 12.

While it may be difficult at times to determine whether a sentencing court

is impermissibly disagreeing with a guideline or permissibly finding a case

atypical, we conclude that, in this case, the court’s departure was based on the

latter. In permissibly finding this case atypical, the court reviewed “the

sentencing guidelines, policy statements, and official commentary of the

Sentencing Commission.” 18 U.S.C. § 3553(b). Because these sources are silent

on the range of conduct covered by the guideline, it was apparent to the court that

the seriousness of the offense was a circumstance not adequately taken into

consideration by the Sentencing Commission.

In addition, the court addressed the Sentencing Commission’s

acknowledgment in its proposed amendment that “the statutes referenced to

§§ 2M2.1 and 2M2.3 cover an extremely wide range of conduct,” 62 Fed. Reg. at

196, and that a departure may be warranted depending on the seriousness of the

offense in question. According to the application note in the proposed

amendment, a departure may be warranted because “it is not possible to include

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all of the potentially relevant circumstances in the offense level.” Id. “For

example, if the defendant was convicted under 18 U.S.C. § 2155 of throwing

paint on defense equipment or supplies as an act of protest during peacetime, the

offense level in subsection (a)(2) [twenty-six, as currently mandated under

§ 2M2.3,] may overrepresent the seriousness of the offense.” Id.

Reliance on the commentary and text of the proposed amendment was not

improper because it is unlike the situation where an amendment proposed by the

Sentencing Commission is clearly rejected by Congress. In that situation, reliance

on the rejected proposal would be improper. See United States v. Gaines, 122

F.3d 324, 329-30 (6th Cir. 1997); cf. United States v. Morelli, 169 F.3d 798, 809

n.13 (3d Cir.) (observing that proposed amendments to Sentencing Guidelines do

not provide independent legal authority for a downward departure), cert. denied,

U.S. , 120 S. Ct. 63 (1999). In fact, though we do not know why the proposed

amendment was not enacted, the only evidence suggests that the Sentencing

Commission was just too busy with other matters to deal with it. According to

the Federal Register, this particular guideline amendment, along with many

others, was characterized as a proposed non-emergency amendment. See 62 Fed.

Reg. at 152, 160.

It is significant that the district court here followed the mandate of 18

U.S.C. § 3553(a)(2)(A) by giving weight to the central purpose in sentencing, that

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is “for the sentence imposed . . . to reflect the seriousness of the offense.” As

noted by the court, the Guidelines routinely involve other situations where the

seriousness of offense conduct is a valid reason to depart. See, e.g., United States

v. Sanchez-Rodriguez, 161 F.3d 556, 561 (9th Cir. 1998) (en banc) (affirming

downward departure in sentencing for illegal reentry following aggravated felony

based on minimal amount of drugs involved in underlying felony); United States

v. Stockheimer, 157 F.3d 1082, 1091 (7th Cir. 1998) (noting permissibility of

downward departure where intended loss related to fraud conviction overstated

seriousness of offense in comparison to realistic possibility of actual loss), cert.

denied, 525 U.S. 1184 (1999); United States v. Roth, 934 F.2d 248, 251-52 (10th

Cir. 1991) (affirming upward departure in conviction for theft of military

equipment based on serious effect of conduct upon national security and on value

of property stolen); United States v. Davis, 912 F.2d 1210, 1212-13 (10th Cir.

1990) (affirming upward departure based on large quantity of drugs involved in

drug distribution offenses). Indeed, the Supreme Court itself recognized that “the

severity of the misconduct, its timing, and the disruption it causes” are factors

which influence a district court’s determination of whether the misconduct in a

particular instance makes the case atypical. Koon, 518 U.S. at 100.

As the guideline now stands, the seriousness of the offense is clearly a

circumstance “not adequately taken into consideration by the Sentencing

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Commission in formulating the guidelines.” 18 U.S.C. § 3553(b); U.S.S.G.

§ 5K2.0. Accordingly, we conclude that the district court did not err in

determining that the absence of adjustments for the seriousness of the offense

under § 2M2.3 is a valid reason for departing.

2.

The government also challenges the court’s reliance on two specific facts

for its departure: (1) that the offense occurred in peacetime, and (2) that it did

not involve a foreign power. The government asserts that neither of these is a

valid mitigating factor. Turning to the second factor first, there is no error in the

court’s consideration of the fact that Defendants’ conduct was not in aid of a

foreign power. This factor is certainly relevant to the seriousness of the offense,

and there is no evidence in the Guidelines or the record that it was considered by

the Sentencing Commission in formulating § 2M2.3.

The court’s consideration of the peacetime factor is somewhat problematic.

Whether or not the offense was committed when the United States was at war is

relevant to the seriousness of the offense and was suggested as a factor by the

proposed amendment, but the existing Guidelines already take the peacetime

factor into account. Section 2M2.1 applies to sabotage during wartime, carrying

with it an offense level of thirty-two in contrast to the offense level of twenty-six

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set by § 2M2.3 for peacetime acts of sabotage. In light of the fact that the

Guidelines already take this factor into account, and because there is no evidence

that it is present to some exceptional degree, the district court should not have

considered it in determining whether to depart. See Collins, 122 F.3d at 1302-03.

Our conclusion that the district court erred in considering that the conduct

occurred during peacetime does not end our analysis. In reviewing the mitigating

factors, the court considered two additional factors as reasons to depart:

(1) whether the offense created a substantial risk of death or injury, and (2) the

extent to which national security was threatened. It found that the offense

conduct did not create a substantial risk of death or injury nor a significant threat

to national security. More importantly, the tenor of the court’s discussion of

these factors specifically, and the departure generally, as well as the detailed

analysis of these two factors indicate that the court gave greater weight to these

factors than to the impermissible peacetime factor. See R., Vol. 6 at 43-44.

Where a sentencing court has relied on both impermissible and permissible factors

for a departure, we are not required to remand if we are satisfied that the district

court would impose the same sentence without relying on the improper factor or

factors. See Koon, 518 U.S. at 113; United States v. Whiteskunk, 162 F.3d 1244,

1250 (10th Cir. 1998). Based on the record and the district court’s analysis in

this case, we do not doubt that the district court would impose the same sentence

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on Defendants even without relying upon the fact that the offense was committed

during peacetime. Cf. United States v. Jones, 158 F.3d 492, 504-05 (10th Cir.

1998) (affirming downward departure despite reliance on two impermissible

factors). It is clear that the court departed because Defendants’ conduct, while

causing more than symbolic property damage, was an act of protest that did not

present a significant risk of injury or threat to national security.

For the foregoing reasons, we affirm the district court’s downward

departure based on § 5K2.0.

AFFIRMED.

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