United States Court of Appeals
For the First Circuit
No. 00-1086
UNITED STATES OF AMERICA,
Appellant,
v.
JOHN LARKIN THOMPSON, a/k/a MOMO,
Defendant, Appellee.
CRIMINAL JUSTICE ACT BOARD,
Intervenor.
NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS,
Intervenor.
[Hon. Nancy Gertner, U.S. District Judge]
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
Before
Torruella, Chief Judge,
Bownes, Senior Circuit Judge,
and Boudin, Circuit Judge.
Adam J. Bookbinder, Assistant United States Attorney, with
whom, Donald K. Stern, United States Attorney, was on brief for
appellant.
Joan M. Griffin, with whom Casner & Edwards, LLP, was on
brief for appellee.
Charles W. Rankin, Michelle Menken, and Rankin & Sultan on
brief for Criminal Justice Act Board and Lisa B. Kemler on brief
for National Association of Criminal Defense Lawyers, amici
curiae.
December 8, 2000
-2-
BOWNES, Senior Circuit Judge. Determining that the
defendant exhibited an extraordinary family situation and
employment history, the district court (Gertner, J.) departed
downward from the guideline sentencing range (GSR) of 87 to 108
months of incarceration and sentenced the defendant to the
mandatory minimum of 60 months in prison, followed by 48 months
of supervised release. Finding that the district court erred as
a matter of law when sentencing the defendant, we vacate the
defendant's sentence and remand for resentencing in accordance
with this opinion.
I.
We recount the facts as stipulated in the Pre-Sentence
Report (PSR): At the time of his arrest, the defendant-appellee
John Thompson was a 24-year-old African-American male. He had
one prior conviction and was never incarcerated.1 He lived his
1 The defendant pled guilty to sufficient facts for the
assault and battery of his fiancée Breii Murray. In the PSR, it
is noted that Ms. Murray advised that she started the fight and
did not want to press charges. The defendant was released on
probation and, according to Ms. Murray, this was the only time
Thompson hit her. The record supports the conclusion that this
was a unique occurrence.
In September of 1998, the police stopped the
defendant's car and found in his mouth two plastic bags of crack
cocaine. His older daughter was with him in the car. He was
not arrested but summoned to court. Thompson denied any drug
involvement and the case was, ultimately, filed without a change
of plea.
-3-
entire life in the Bromley Heath Housing Development in
Massachusetts. He described his childhood as “rough”; the
majority of it was spent without his father, who was
incarcerated much of the time. Thompson dropped out of high
school in the eleventh grade when he learned that his
girlfriend, Breii Murray, was pregnant with their first child.
Ms. Murray and the defendant have been in a steady relationship
for seven years and are engaged to be married. They have two
daughters together. Ms. Murray received a Certificate in
Business Administration from the Roxbury Community College but
does not work so that she can spend more time with her
daughters.
The PSR indicates that Thompson is a good father who
spends much time with his daughters and enjoys a solid
relationship with both of them, particularly Jabria, his older
daughter. He supports his fiancée, their children, and his
fiancée's family both economically and emotionally. Ms.
Murray's mother, Jessica Gonzalez, is very supportive of the
defendant and considers him to be like a son. Likewise, Ms.
His criminal record also included the following:
possession with intent to distribute class D and class B
controlled substances, both charges were ultimately dismissed;
an arrest for drinking alcohol in a public way, which was
dismissed; and possession with intent to distribute a class B
substance, which was filed without a change of plea.
-4-
Murray's aunt, Ethel Ejiofor, and her grandmother, Ms. DuBois,
are supportive of the defendant. In fact, the defendant resided
with them while he was out on bail. They describe the defendant
as a wonderful person who has made substantial contributions to
the upkeep of their home by running errands and doing chores,
and financial contributions of $100 per week. They consider
Thompson to be a member of their immediate family. All of the
women stressed that the defendant is a good man and a wonderful
father, and indicated that the defendant's incarceration would
detrimentally impact their lives and specifically the lives of
his daughters. Letters were submitted to the court from Ms.
Gonzalez and Ms. Murray that support the PSR's appraisal of
Thompson's family life.
The PSR also indicates that the defendant was employed
almost consistently from the time he left high school because of
his fiancée's pregnancy. Thompson obtained many jobs through a
local union, of which he became a member. At the time of his
arrest, he was employed by M. Solberg Enterprises Corp. and
earned about $2,000 per month setting planks, drilling cords and
cutting concrete. His employer provided the district court with
a letter in support of his bail and indicated that he was wanted
back at his job and would be welcomed.
II.
-5-
A federal grand jury indicted the defendant on
narcotics violations stemming from an investigation of crack
cocaine trafficking at the Bromley Heath Housing Development.
Pursuant to a plea agreement, the defendant pled guilty to one
count of distributing cocaine base in violation of 21 U.S.C.
§ 841(a)(1).
The district court held a sentencing hearing on August
4, 1999, and August 11, 1999. The defendant had a base offense
level of 32 pursuant to the United States Sentencing Guideline
(U.S.S.G.) § 2D1.1(c)(4) (1998).2 The defendant's offense level
was reduced three levels because of his acceptance of
responsibility and timely plea, pursuant to U.S.S.G §§ 3E1.1(a)
& (b), and he rated a criminal history category of I, pursuant
to U.S.S.G. Chapter 5, Part A. The defendant, therefore, fell
within the guideline range of 87 to 108 months in prison. The
defendant moved for a downward departure to the mandatory
2 Section 2D1.1(c)(4) of the U.S.S.G. provides a base
offense level of 32 if the offense conviction involved at least
50 grams but less than 150 grams of cocaine base. The district
court noted that: “Although Thompson pleaded to one count of
distribution involving 23.6 grams of cocaine base, U.S.S.G. §
1B1.3(a)(2) provides that a defendant can be held accountable
for all acts that 'were part of the same course of conduct or
common scheme or plan as the offense of conviction.' Therefore,
in calculating Thompson's base offense level, the government
used the aggregate of four sales made to undercover agents for
a total of 51.8 grams.”
-6-
minimum of 60 months in prison based on his extraordinary family
obligations and employment history.
At the first sentencing hearing, the district court
noted that “extraordinary family obligations” is a “very
difficult category to meet.” She continued: “I'm not going to
rule at this moment, but from what I've seen, I don't think that
this comes close . . . .” Then the district court continued the
sentencing hearing until August 11th and invited the defendant
to present more information on his family and employment.
At the second hearing, the district court heard from
the defendant himself and accepted letters written on his
behalf. After hearing argument from both sides, the district
judge found that the defendant exhibited extraordinary family
ties and responsibilities and employment history, and departed
downward to the statutory minimum sentence of 60 months. The
district court stated, in pertinent part:
The guidelines permit me to depart for
extraordinary family obligations. And the
last time I looked at this case from one set
of eyes and thought that these were really
not – this didn't rise to the level of
extraordinary. Since last week, I have done
more work and reconsidered that.
As I said before, the question of what
is ordinary is nowhere defined. There's no
– the Sentencing Commission doesn't tell us
this is the ordinary situation. We are all
guessing at what's ordinary. And in the
course of making those guesses, we feed in
-7-
our stereotypes, our biases, cultural,
racial, gender, etc. And I want to feed
them out of it. I want to see if I can
distill them out of this picture, my biases.
Where I grew up, families were intact
and the kinds of things that you're
describing were not unusual. The kinds of
relationships that you're describing were
not unusual.
In other settings in this country, the
kinds of things that you're describing are
unusual. And, in my experience as a judge
and before that as a lawyer, it was not
usual to find the kinds of profiles that you
present, Mr. Thompson, of someone with
intact employment, going out of his way to
do the things for his children under the
circumstances that you have.
* * * *
It seems to me that by any fair
definition of extraordinary – that's not, by
the way, as I said, the way I was raised,
it's not the way others in this courtroom
were raised. But certainly, in the
communities that I have seen, your
relationship to your children, your older
daughter, is extraordinary.
* * * *
So I will – and I will write this up
– I will depart to take into account your
extraordinary family obligations,
commitments to work, and what I believe to
be an extraordinary rehabilitation,3 as well.
3 This was the last mention of “extraordinary
rehabilitation.” The district court departed on the sole
grounds of extraordinary family obligations and employment
history and that is all we discuss today.
-8-
* * * *
I will depart, based on my findings of
extraordinary family ties and
responsibilities – and I will write this up
– under 5H1.6, I will depart also based upon
your employment record, 5H1.5. And,
likewise, I will depart because of your
extraordinary family obligations. And I
will depart to a level 25. You're at
Criminal History 1. And I will sentence you
to 60 months.
Neither party objected to the sentencing. Three months later,
the court issued its sentencing memorandum and judgment. In it,
the court grappled with the question of how to determine if the
defendant demonstrated an “extraordinary” family circumstance or
employment history. It stated in pertinent part:
What is the standard by which to judge
“extraordinary” family obligations or an
“extraordinary” work history? What class of
defendants define “ordinary”? While the
Sentencing Commission and the case law offer
little guidance on the subject, one thing is
clear: The baseline is not, nor should it
be, “Ozzie and Harriet,” the fictional two
parent, two child, suburban home. In a
sentencing regime whose aim is to eliminate
unwarranted disparities between similarly
situated offenders, “ordinary” should be
determined by comparing this defendant with
others convicted of the same crime.
Here, I compared the defendant, who
was convicted of crack cocaine sales, with
others convicted of the same offense in my
court, and indeed, throughout the District
of Massachusetts. I reviewed not only my
own records of previous sentences, but also
presentence reports of individuals sentenced
by other judges within the District.
-9-
* * * *
First, I have drawn on my own experience as
a judge. In addition, I have reviewed the
presentence reports for offenders similarly
situated to Thompson with respect to place
(the Bromley Heath projects), time (1998),
and offense (sale of crack cocaine), and
more generally, I have reviewed the PSR's
[sic] of those convicted of crack cocaine
sales in this jurisdiction in 1998 and 1999.
(Emphasis added). This may seem to make sense, but it is
contrary to the law of this circuit.
In United States v. DeMasi, 40 F.3d 1306, 1324 (1st
Cir. 1994), we held that when a district court contemplates a
downward departure based on a discouraged factor,4 it must
compare the defendant to others who exhibit that factor, not to
others who have been convicted of the same offense. We held
that the district court erred in sentencing the defendant, “by
restricting the scope of its comparison to only bank robbery
cases.” Id. at 1324. We continued: “A court should survey
those cases where the discouraged factor is present without
4 “Discouraged factors” are defined as factors “not
ordinarily relevant to the determination of whether a sentence
should be outside the applicable guideline range. . . .
[A]lthough these factors are not ordinarily relevant to the
determination of whether a sentence should be outside the
applicable guideline range, they may be relevant to this
determination in exceptional cases.” 1998 U.S.S.G. ch. 5, pt.
H, intro. cmt; see also United States v. Koon, 518 U.S. 81, 95
(1996). Family ties and responsibilities and employment record
are discouraged factors. See U.S.S.G. §§ 5H1.6 (family) and
5H1.5 (employment).
-10-
limiting its inquiry to cases involving the same offense, and
only then ask whether the defendant's record stands out from the
crowd.” Id. (emphasis added).
Here, the district court did what DeMasi forbids: it
limited its inquiry to cases involving crack cocaine dealers and
then asked whether Thompson's record stood apart from the rest.
Thus, the district court erred as a matter of law.5
III.
For the reason stated above, we vacate the defendant's
sentence and remand for resentencing. The court may sentence
the defendant within the applicable GSR or the court may
sentence the defendant by comparing him to others with family
responsibilities and significant employment histories, or a
combination of the two, regardless of the offense of which they
have been convicted. If it does so, it should provide the
parties with all material not already included in the record
that it intends to consider in determining the sentence and
allow the parties time to object or comment before any sentence
is imposed. We can defer to another day deciding whether and
5 We have considered whether Koon has overruled DeMasi,
as urged by the appellant and amicus, and are not persuaded by
the suggestion. Whether DeMasi should be modified in light of
subsequent developments, including case law in other circuits,
is a matter not for the panel but for an en banc petition.
-11-
when the district court may in sentencing appropriately rely on
material that is not made available to both sides.
Vacated and remanded with instructions.
-12-