United States v. Carvell

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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