United States Court of Appeals
For the First Circuit
No. 95-1606
UNITED STATES OF AMERICA,
Appellee,
v.
WILLIAM H. CARVELL,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Torruella, Chief Judge,
Stahl and Lynch, Circuit Judges.
James R. Bushell for appellant.
Helene Kazanjian, Assistant United States Attorney, with whom Jay
P. McCloskey, United States Attorney, and George T. Dilworth,
Assistant United States Attorney, were on brief, for the United
States.
January 19, 1996
LYNCH, Circuit Judge. William Carvell, a fifty
LYNCH, Circuit Judge.
year old Maine farmer, was sentenced to prison for seventy
months on marijuana charges. The question on appeal is
whether the Sentencing Guidelines prohibited the trial judge
from exercising discretion to depart downward in the sentence
given. Carvell pled guilty to growing marijuana, saying it
was for his own use to combat his depression and suicidal
tendencies. The trial judge concluded that, as a matter of
law, the Guidelines' "drug dependency" prohibition overrode
any downward departure under the "lesser harms" provision.
The judge also noted that, but for the "drug dependency"
departure prohibition, he would have reduced the sentence
through a downward departure. We hold that the court did
have authority to consider a downward departure under the
"lesser harms" provision and return the case for
resentencing.
Carvell also raises for the first time on appeal
the argument that the marijuana manufacturing statute, as
applied to him, is invalid in the aftermath of United States
v. Lopez, 115 S. Ct. 1624 (1995). We decline to go down that
path.
Having never lived anywhere but his family farm
(save during his nine month marriage), and eking out a
subsistence living, Carvell grew crops and produced some
marijuana on his six acre family farm in Lyman, Maine.
Carvell lived there with his mother and with his father, for
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whom he had cared as the father's death came. Carvell's
formal education stopped with high school; and his only pre-
arrest work experience, other than on the farm, was a brief
stint at the Portsmouth Naval Shipyard.
Law enforcement officials, acting on an
informant's tip and an aerial overview of the farm, raided
the farm and found 467 marijuana plants, an Excedrin bottle
containing marijuana seeds, some growing supplies and smoking
paraphernalia and some more marijuana in the barn. Because
the Sentencing Guidelines count each plant as equivalent to 1
kilogram, the plants, together with the other marijuana,
amounted to 468 kilograms of marijuana attributable to
Carvell.1 U.S.S.G. 2D1.1(c) (Nov. 1994).
Carvell was arrested on Halloween in 1994 and
indicted on one count of knowingly "manufacturing" marijuana.
21 U.S.C. 841(a)(1) & (b)(1)(B). Carvell cooperated with
the police, the Maine Drug Enforcement Agency, and the U.S.
Attorney, and pled guilty.
1. In fact the plants weighed 67 pounds or 30 kilograms, but
the Guidelines require that each plant be counted as one
kilogram when the offense involves more than fifty plants.
U.S.S.G. 2D1.1(c). This is because "Congress intended to
punish growers of marihuana by the scale or potential of
their operation and not just by the weight [or size] of the
plants seized at a given moment." United States v. McMahon,
935 F.2d 397, 401 (1st Cir.)(citation and quotation marks
omitted; alteration in original), cert. denied, 502 U.S. 897
(1991). The district court here took judicial notice that in
fact plants may not produce one kilogram each.
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During the time after his preliminary hearing and
before his plea, Carvell was released from custody on the
condition that he not use marijuana. Consequently, Carvell
became depressed and suicidal and was admitted to the Maine
Medical Center. He was kept for two weeks, received
medications and therapy and was released to jail.
At his sentencing hearing, Carvell testified that
he suffered from severe depression since the mid 1960's and
that his illness made him feel suicidal. He sought medical
help in 1968, was diagnosed as suffering from chronic
depression and was prescribed medication. Carvell also
testified that he became ill from the medication and that his
physician recommended that he use marijuana to treat his
depression. He tried it, found that it helped and so he kept
on. In 1970 Carvell was arrested for selling three fourths
of a pound of marijuana and was remanded to the state prison
in Thomaston, Maine for nine months. During his
incarceration he was told by the prison psychiatrist that
marijuana relieved depression. In 1988, he was arrested for
cultivating marijuana and sentenced to five years in prison.
Carvell continued to use marijuana in violation of the terms
of his probation under the 1988 sentence. As for the
marijuana he grew in 1994, he said it was to insure he had an
adequate supply to get him through the year. Carvell
admitted that he intermittently sold some marijuana to
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friends without making a profit, saying it was mostly to the
same person, also suffering from depression. The government
did not contest Carvell's claim of psychiatric illness.
Carvell, under new medication from the Maine
Medical Center, addressed the district court, saying:
[T]he only reason I used marijuana was to
keep from being suicidal, and that now
that I have found a proper medication
that really works . . . I don't believe
that I would ever be tempted . . . in
breaking the law to treat my depression.
The district court found Carvell credible, that Carvell had a
history of major depression, that he had been advised by at
least one doctor that marijuana was an effective treatment,
that Carvell had not previously found an alternative
medication and that Carvell was sincere both in stating that
he used marijuana to prevent himself from attempting suicide
and in believing he no longer needed marijuana.
The district court concluded:
Were 5H1.4 not so clear, I would grant a
departure under 5K2.11, the lesser harms
policy statement . . . . I am absolutely
convinced, in light of the testimony I've
heard, that Mr. Carvell sincerely
believed that he had a severe medical
problem that would lead him to seriously
consider suicide, and that to avoid that
situation he committed the crime of
providing for himself marijuana. The
policy statement [section 5K2.11] goes on
to say, "In such instances a reduced
sentence may be appropriate, provided
that the circumstances significantly
diminish society's interest in punishing
the conduct." I would find that to be
the case here . . . . [F]or all of those
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reasons, I would depart downward under
the lesser harms provision and I would
depart downward to the mandatory minimum
of 60 months in this case. But I do not
do so, because I believe [as the
government has argued], that 5H1.4
precludes that kind of analysis
[paragraph structure omitted].
The government also said it believed the Guidelines gave it
no flexibility as to its recommendation.
Guidelines Analysis
The question presented is a legal one of whether
Guidelines section 5H1.4, concerning "Physical Condition,
Including Drug . . . Dependence or Abuse" prohibits a trial
judge on these facts from considering a downward departure
under Guidelines section 5K2.11, the "lesser harms"
provision. We give substantial deference to the district
court's findings that the factual predicates for the
application of both section 5H1.4 and section 5K2.11 are
present.
Review of the sentencing court's fact findings is
for clear error and we "will not disturb supported findings
unless our scrutiny of the record convinces us that a serious
mistake was made." United States v. Sklar, 920 F.2d 107,
110-11 (1st Cir. 1990) (citations omitted). The sentencing
court found that: (i) Carvell had a psychological problem
that precipitated his dependence; (ii) Carvell believed he
needed to use marijuana in order to prevent himself from
committing suicide; (iii) he had tried legally prescribed
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drugs, but they had failed, and he had turned to marijuana;
(iv) at least one doctor had advised Carvell to use marijuana
to alleviate his problem; and (v) Carvell would not use
marijuana again because he had found legally available drugs
that worked to solve his problem. The district court found
that Carvell believed that using marijuana was the only way
he could keep from committing suicide and that, as a factual
matter, Carvell would qualify for a downward departure under
the lesser harms provision of the Guidelines. These fact
determinations are for the sentencing court. See United
States v. Rivera, 994 F.2d 942, 950 (1st Cir. 1993). The
record contains no basis for disturbing the district court's
fact findings here.
We review de novo the legal question of whether
section 5H1.4 precludes any downward departure under section
5K2.11. See United States v. Schultz, 970 F.2d 960, 962 (1st
Cir. 1992) ("The legal determination as to the proper
interplay among related guidelines is subject to plenary
review."), cert. denied, 113 S. Ct. 1020 (1993). The
government urged and the sentencing judge felt that he was
barred from granting Carvell a downward departure under
section 5K2.11,2 the "lesser harms" provision, because
2. Section 5K2.11 provides in pertinent part:
Lesser Harms (Policy Statement)
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section 5H1.43 prohibits downward departures for drug
Sometimes, a defendant may commit a crime
in order to avoid a perceived greater
harm. In such instances, a reduced
sentence may be appropriate, provided
that the circumstances significantly
diminish society's interest in punishing
the conduct, for example, in the case of
a mercy killing. Where the interest in
punishment or deterrence is not reduced,
a reduction in sentence is not
warranted. . . .
In other instances, conduct may not cause
or threaten the harm or evil sought to be
prevented by the law proscribing the
offense at issue. For example, where a
war veteran possessed a machine gun or
grenade as a trophy, or a school teacher
possessed a controlled substance for
display in a drug education program, a
reduced sentence might be warranted.
U.S.S.G. 5K2.11, p.s. (Nov. 1994).
3. Section 5H1.4 provides in relevant part:
Physical Condition, Including Drug or
Alcohol Dependence or Abuse (Policy
Statement)
. . . Drug or alcohol dependence or abuse
is not a reason for imposing a sentence
below the guidelines. Substance abuse is
highly correlated to an increased
propensity to commit crime. Due to this
increased risk, it is highly recommended
that a defendant who is incarcerated also
be sentenced to supervised release with a
requirement that defendant participate in
an appropriate substance abuse
program. . . .
U.S.S.G. 5H1.4, p.s. (Nov. 1994).
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"dependence" or "abuse." Section 5H1.4 provides that drug
"dependence or abuse is not a reason for imposing a sentence
below the Guidelines," U.S.S.G. 5H1.4, p.s. (emphasis
added), while section 5K2.11 allows a departure in sentencing
where a defendant "commit[s] a crime to avoid a perceived
greater harm," U.S.S.G. 5K2.11, p.s., in this case, the
taking of his own life.
We hold that a district court has authority to
consider a downward departure under section 5K2.11, provided
there is an appropriate factual predicate, even if that
predicate subsumes particular facts that would be precluded
by section 5H1.4 from forming a basis for departure. To hold
otherwise would be inconsistent with the intent of the
Commission as expressed in the relationship between Part H
and Part K, in section 5K2.11 itself, and in the relationship
among other sections of the Guidelines. It would also be
inconsistent with the method of analysis adopted by this
Circuit in United States v. Sklar, 920 F.2d 107 (1st Cir.
1990).
The structure of the Guidelines illuminates that
there is no necessary conflict between the two sections. Cf.
United Savings Ass'n v. Timbers of Inwood Forest, 484 U.S.
365, 371 (1988) (individual statutory provisions should be
interpreted in light of their relationship to other
provisions). The "drug dependence" downward departure bar
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appears in Chapter 5, Part H of the Guidelines, which sets
forth "specific offender characteristics" that "are not
ordinarily relevant to the determination of whether a
sentence should be outside the applicable guideline range."
U.S.S.G. Ch.5, Pt.H, intro. comment. Having discouraged
certain types of characteristics in Chapter 5, Part H as "not
ordinarily relevant" to departures, the Commission then went
on in Part K of Chapter 5 to specify permissible grounds for
departures. U.S.S.G. Ch.5, Pt.K. Part K first provides a
general statement concerning departures in cases involving
factors not adequately considered by the Commission.
U.S.S.G. 5K2.0, p.s. Part K then lists specific grounds
that may warrant departure, including the "lesser harms"
provision.
In light of this structure, the fact that a factor
described in Chapter 5, Part H as a discouraged or forbidden
ground for departure is present in a case does not itself
necessarily negate departure based on a permissible ground
carefully detailed by the Commission in Part K. Part K
complements Congress' goal that the Guidelines not be imposed
"in a mechanistic fashion." S. Rep. No. 225, 98th Cong., 2d
Sess. 4 (1984), reprinted in 1984 U.S.C.C.A.N. 3182, 3234-35
("The sentencing guidelines system will not remove all of the
judge's sentencing discretion. Instead, it will guide the
judge in making his decision on the appropriate sentence.").
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Congress intended "the sentencing judge [to act on her]
obligation to consider all the relevant factors in a case and
to impose a sentence outside the guidelines in an appropriate
case." 1984 U.S.C.C.A.N. at 3235.
The limitation contained within the text of the
"lesser harms" provision, section 5K2.11, sheds light on its
scope in relation to section 5H1.4. Section 5K2.11 provides
that "[w]here the interest in punishment or deterrence is not
reduced, a reduction in sentence is not warranted." U.S.S.G.
5K2.11, p.s. Here, where the record clearly demonstrates
that the alternative to Carvell's marijuana use might well
have been the taking of his own life, the interest in
punishment or deterrence of drug "manufacturing" could
reasonably be thought to be reduced. In contrast, in the
ordinary drug dependence case, it is difficult to see how
that limitation in section 5K2.11 could be avoided. The
Commission has specified that society's interest in
punishment and deterrence outweighs the "drugs made me do it"
excuse for crimes committed to feed drug habits or while
under the influence of drugs. U.S.S.G. 5H1.4, p.s.
Moreover, claims of being driven to drugs by the habituation
of prior drug use, disadvantaged upbringing or poor
socioeconomic life conditions have been weighed by the
Commission and found insufficient ordinarily to overcome the
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societal interest in deterrence and punishment.4 U.S.S.G.
5H1.4, p.s., 5H1.10, p.s. & 5H1.12, p.s.
This is not a case where the defendant's drug
dependence is the very element driving the applicability of
the "lesser harms" provision. The risk of suicide for
Carvell was not a byproduct of his drug dependence: the
district court credited Carvell's testimony that fear he
would take his own life led him to use drugs, not vice versa.
The avoidance of suicide, not drug use, drives the "lesser
harms" analysis here.
Nor is there reason to think that a downward
departure here would be inconsistent with U.S.S.G. 5H1.3,
p.s., which discourages consideration of "mental and
emotional conditions" as grounds for departure. Section
5H1.3 explicitly permits consideration of "mental and
emotional conditions" when they are provided for in Chapter
5, Part K, Subpart 2. U.S.S.G. 5H1.3, p.s. That is
4. Further, as Judge Selya's important and seminal article
on the Sentencing Guidelines notes, departures based solely
on drug dependence could "confer a benefit on addicted
defendants that is unavailable to similarly situated drug-
free defendants (and thus would create a perverse incentive
to develop such a problem)." Bruce M. Selya & Matthew Kipp,
An Examination of Emerging Departure Jurisprudence under the
Federal Sentencing Guidelines, 67 Notre Dame L. Rev. 1, 35
(1991) (footnote omitted). No such incentive would be
created by a downward departure here under section 5K2.11.
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exactly where section 5K2.11 is located.5 Indeed, the
Commission chose to leave the limitation in section 5K2.11 to
cases where the interest in deterrence or punishment was not
reduced. See U.S.S.G. 5K2.11.
Our conclusion that the "drug dependence" departure
bar does not preclude a "lesser harms" departure here is
consistent with the law of this Circuit concerning whether a
defendant's post-arrest rehabilitation from drug use can be
considered as a sentencing factor. In United States v.
Sklar, 920 F.2d 107 (1st Cir. 1990), this Court said that a
defendant's drug rehabilitation could be taken into account
at least as a factor in deciding whether departure is
warranted and that, if "significantly unusual," a defendant's
post-arrest rehabilitation might itself provide a ground for
downward departure.6 This was so although drug "dependence
5. See United States v. Hines, 26 F.3d 1469, 1478 n.6 (9th
Cir. 1994) (mental and emotional conditions relevant in
determination that upward departure is warranted to the
extent permitted in section 5K2.0); United States v. Russell,
917 F.2d 512, 517 (11th Cir. 1990) (mental and emotional
conditions relevant in determination of downward departure to
the extent provided in section 5K2.12 (coercion or duress)
and 5K2.13 (diminished capacity)), cert. denied, 499 U.S. 953
(1991); United States v. Saldana, Crim. No. 88-00196, 1989 WL
61140, *2 (M.D.Pa. May 19, 1989) (downward departure allowed
under the "lesser harms" provision where defendant's mental
and emotional condition resulted in his perception that the
commission of crime was warranted to avoid a greater harm).
6. Sklar held that, ordinarily, post-arrest rehabilitation
is not a grounds for departure because such rehabilitation
can adequately be taken into account through the granting of
acceptance-of-responsibility credit under U.S.S.G. 3E1.1.
See Sklar, 920 F.2d at 115-16.
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or abuse" necessarily precedes rehabilitation, like sin
precedes salvation.7 See id. at 115-16 & n.9. There is even
less reason to believe that section 5H1.4 bars departure
here, where the defendant's perception that he was avoiding a
greater harm, unlike a defendant's drug rehabilitation, is
expressly permitted by the Guidelines as a ground for
downward departure.8 Cf. United States v. Hines, 26 F.3d
1469, 1478 (9th Cir. 1994) (district court had authority to
consider upward departure from Guidelines criminal history
category based on defendant's dangerous mental condition as
provided in U.S.S.G. 4A1.3, even though mental condition is
ordinarily discouraged as a ground for departure by section
5H1.3).
Concluding that the "drug dependence" provision
does not here bar a downward departure where the "lesser
7. See also United States v. Harrington, 947 F.2d 956, 962
(D.C. Cir. 1991) (en banc). In his dissent, Judge Silberman
took the contrary position that rehabilitation cannot be
taken into account either under section 3E1.1 or in
considering departure from the Guidelines sentence, arguing
that "the Commission rejected drug dependence and therefore
rehabilitation as a sentencing factor under section 5H1.4."
Id. at 970 (Silberman, J., dissenting).
8. Similarly, in section 5K2.12, the Commission has
explicitly allowed departures where coercion or duress is
shown. The fact that age or gender might be a factor in such
coercion has not barred such departures, although each is
itself prohibited as a ground for departure under U.S.S.G.
5H1.1, p.s. & 5H1.10, p.s. See United States v. Johnson, 956
F.2d 894, 898 (9th Cir. 1992); United States v. Whitetail,
956 F.2d 857, 862 (8th Cir. 1992); United States v. Gaviria,
804 F. Supp. 476, 479-80 (E.D.N.Y. 1992); United States v.
Naylor, 735 F. Supp. 928, 929 (D. Minn. 1990).
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harms" provision simultaneously provides a permissible ground
for such a departure, we reach and reject the government's
argument that there is yet another bar. The government
argues that marijuana's classification as a Schedule I
substance under the Controlled Substances Act, see 21 U.S.C.
812, evidences a legislative determination that marijuana
"has no currently accepted medical use for treatment," id. at
812(b)(1)(B), and thus precludes a downward departure on
the facts here. That conclusion does not follow.
There is no inconsistency between Carvell's
downward departure claim and the classification of marijuana
as a Schedule I substance. Deciding whether a downward
departure is warranted under section 5K2.11 in this case does
not require an examination of whether marijuana has a
"currently accepted medical use," 21 U.S.C. 812(b)(1)(B),9
or satisfies the other factual criteria for being listed on
Schedule I. Nor does the section 5K2.11 inquiry even depend
upon a determination of whether the medical benefits of
Carvell's marijuana use in his particular case outweighed the
risks. Rather, the sole dispositive question under section
5K2.11 is whether taking as given that marijuana is a
Schedule I substance and has no "currently accepted medical
use for treatment" the defendant here committed the offense
9. See also 57 Fed. Reg. 10,499, 10,506 (Mar. 26, 1992)
(final order of Administrator of DEA, setting forth specific
criteria for finding "currently accepted medical use").
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conduct "in order to avoid a perceived greater harm," thus
falling under section 5K2.11. We hold that the district
court had discretion to consider a downward departure under
section 5K2.11.
Carvell's Commerce Clause Attack on 21 U.S.C. 841(a)(1)
Carvell argues that there was no crime, as the
district court lacked subject matter jurisdiction in that 21
U.S.C. 841(a)(1), as applied to him, exceeded Congress'
power under the Commerce Clause. He raises the argument for
the first time on appeal, positing that the argument is
nonetheless timely because his guilty plea was entered before
the decision in United States v. Lopez, 115 S. Ct. 1624
(1995).
More than ever, we have reason to adhere to the
normal rule that issues not raised below will not be heard on
appeal unless there was plain error. United States v. Olano,
113 S. Ct. 1770, 1776-77 (1993); United States v. Luciano-
Mosquera, 63 F.3d 1142, 1156 (1995). This is not a change-
in-the-law situation which might incline us to a more
sympathetic view of the failure of counsel to be prescient
enough to raise an issue in the trial court when the law was
firmly against defendant at the time. Cf. United States v.
London, 66 F.3d 1227, 1239-40 (1st Cir. 1995) (waiver was
excusable where instructions, when given, were in accordance
with newly minted en banc decision of the First Circuit);
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United States v. Collins, 60 F.3d 4, 7 (1st Cir. 1995).
Lopez was argued to the Supreme Court on November 8, 1994,
and the challenges made there were no secret. Carvell was
arrested on October 31, 1994, his plea was on January 23,
1995, and he was sentenced on June 1, 1995. Lopez was
decided on April 26, 1995, well before Carvell's sentencing,
giving him ample time to move to withdraw his plea based on
Lopez.
Not only does Carvell's claim not fit within the
category of exceptional cases where review of waived issues
will be permitted, United States v. Krynicki, 689 F.2d 289,
291-92 (1st Cir. 1982), but there is every reason not to
undertake to resolve a matter as serious a challenge to the
constitutionality of a criminal statute without adequate
notice to the government and without the benefit of a fully
developed factual record (to the extent necessary), the
sharpening of the issues at trial, and the district court's
reasoning. We decline the invitation to so engage.10 The
10. Carvell's argument faces the additional barrier that it
is made in the context of a valid guilty plea. A guilty plea
and the ensuing conviction comprehend all of the factual and
legal elements necessary to sustain the judgment and
sentence, and any subsequent attack on the conviction is
normally limited to inquiry as to the validity of the plea
and plea hearing. See United States v. Broce, 488 U.S. 563,
569 (1989); United States v. Martinez-Martinez, 69 F.3d 1215,
1224 (1st Cir. 1995); Valencia v. United States, 923 F.2d
917, 920 (1st Cir. 1991). However, since Carvell has not
preserved his Commerce Clause challenge for appeal, we need
not decide whether this doctrine also bars his claim, or
whether any of the narrow exceptions that exist where it is
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district court's "failure" to consider sua sponte whether
there were Commerce Clause restrictions to defendant's
prosecution was not clearly in error, and did not produce a
gross miscarriage of justice or seriously affect the
fairness, integrity or public reputation of the judicial
proceedings. Olano, 113 S. Ct. at 1779.
Conclusion
The sentencing court determined that it would grant
Carvell a downward departure of ten months under section
5K2.11, the "lesser harms" provision, to the mandatory
minimum sentence of sixty months, were such a departure not
barred by section 5H1.4. Having concluded that section 5H1.4
does not bar the departure in this case, we vacate the
sentence and remand for resentencing with the instruction
that Carvell be sentenced to the mandatory minimum of sixty
months.
evident that "on the face of the record the court had no
power to enter the conviction or impose the sentence," Broce,
488 U.S. at 569, are available here.
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