United States Court of Appeals
For the First Circuit
No. 02-1706
UNITED STATES OF AMERICA,
Appellant,
v.
ALFRED CRAVEN,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Joseph L. Tauro, U.S. District Judge]
Before
Selya, Circuit Judge,
Coffin, Senior Circuit Judge,
and Howard, Circuit Judge.
Dina M. Chaitowitz, Assistant United States Attorney, with
whom Michael J. Sullivan, United States Attorney and Michael D.
Ricciuti, Assistant United States Attorney were on brief, for
appellant.
Stephen Hrones, with whom Hrones & Garrity was on brief, for
appellee.
February 6, 2004
HOWARD, Circuit Judge. The government challenges a
downward departure in the sentencing of Alfred Craven, a leader of
an elaborate marijuana trafficking venture that operated for
several years in California and Massachusetts. The district court
found that Craven, a former drug user, had demonstrated such
“extraordinary rehabilitation” in changing his lifestyle prior to
his arrest that he was entitled to a 37-month downward departure in
his sentence. The government contests this finding, citing a
record of eighteen disciplinary violations by the defendant during
his presentencing detention. We reverse.
I. Factual and Procedural Background
This is not the first occasion on which we have
considered the sentence of Alfred Craven. See United States v.
Craven, 239 F.3d 91 (1st Cir. 2001). We recite the pertinent
background in brief, leaving some of the details to our earlier
opinion. See id. In June 1999, Craven pleaded guilty to nine
crimes committed in connection with his role in a longstanding
marijuana distribution scheme. After a series of hearings, the
district court (Gertner, J.) granted a 37-month downward departure
for extraordinary rehabilitation, sentencing Craven to 151 months
in prison.1 In reaching its decision, the district court relied on
1
Craven otherwise would have been subject to a sentence of 188
to 235 months, a sentencing-range calculation that already included
(1) a 3-level acceptance-of-responsibility reduction, and (2) an
adjustment of his criminal history category from III to I on the
ground that the presentence report's category-III classification
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an ex parte conversation with an expert witness appointed by the
court to evaluate Craven’s claims of rehabilitation from drug
addiction. The government appealed, alleging that (1) the district
court abused its discretion in relying on its conversation with the
expert in its sentencing determination, and (2) the record
otherwise failed to support a finding of extraordinary
rehabilitation. Agreeing with the first of the government’s two
contentions, we vacated and remanded for re-sentencing before
another judge. See generally id.
On remand, the district court (Tauro, J.) heard the in-
court testimony and cross-examination of the expert witness whose
ex parte conversation with the first sentencing judge had been the
subject of the government’s first appeal.2 Dr. Laurence Weisman,
a clinical psychologist, testified that he had met with the
defendant on one occasion in January 2000 and had reviewed his
presentence report. According to his interview with the defendant,
overstated Craven's culpability.
2
In a hearing prior to the testimony of the expert witness,
Judge Tauro stated that he had reached the same preliminary
conclusions regarding sentencing that Judge Gertner had reached
before her ex parte conversation with the witness, stating "I am
just where Judge Gertner was when she responded that she didn’t
have enough to do anything with respect to the changed
circumstances and his redemption. And I agree with her with
respect to all the other issues of the gun [enhancement], all that.
It is exactly the same as where she was." Judge Tauro said that he
would hear from the expert in court, and that if he was "impressed
with his testimony," then he would "probably give [Craven] the same
sentence as [Judge Gertner] did.”
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Craven had struggled with drug addiction throughout his life but
had stopped using drugs and alcohol about a year before his arrest,
at a time when he was aware that he was the subject of a criminal
investigation. Craven had also become more involved in caring for
his young son and had begun working a full-time job. Dr. Weisman
testified that Craven had demonstrated “significant insight and
responsibility for his behaviors,” and had recognized a need to
turn his life around by addressing his drug addiction. According
to Dr. Weisman, Craven was “intent [o]n taking responsibility for
himself and changing . . . his lifestyle.
Dr. Weisman had reviewed Craven’s presentencing
disciplinary records prior to testifying, although he had not seen
them during his original evaluation of Craven in 2000. He
testified that Craven’s disciplinary problems had not changed his
earlier opinion about the prognosis for Craven. In his 2000 expert
report, Dr. Weisman had concluded:
As with any individual attempting to overcome
a background of addiction and criminal
lifestyle, the prognosis remains guardedly
optimistic if the individual participates in a
comprehensive, longterm recovery program. Mr.
Craven appears to have demonstrated both the
willingness and capability which would make
him a good candidate to succeed.
(emphasis in original). Dr. Weisman's opinion remained unchanged
largely because Craven's misconduct during presentencing detention
was not “beyond the norm” of what he would expect from someone who
is incarcerated. As Dr. Weisman recalled the disciplinary records,
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Craven had had a dispute with a guard and had been found with
homemade alcohol. But he had not been violent or cruel towards
anyone.
On cross-examination, Dr. Weisman was asked about
particular incidents in which Craven had been disciplined. The
disciplinary records documented eighteen episodes of misconduct,
including incidents in which Craven had punched one inmate in the
face with a closed fist, headbutted another, and repeatedly elbowed
a third in the face while holding him down. Craven was also
disciplined for numerous incidents of insubordination.3 Also, as
Dr. Weisman had acknowledged on direct, Craven was once found in
possession of homemade alcohol.
In response to this questioning, Dr. Weisman conceded
that some of the incidents were violent. But he concluded that
Craven was in an environment where there was a lot of fighting and
that Craven’s behavior was better than other inmates’ because he
would at least “cuff up,” or allow himself to be handcuffed, when
ultimately ordered to do so by an officer. Dr. Weisman found
Craven’s willingness to respond to an order to be significant for
3
According to one report, Craven was once found kicking his
cell door. When the door was opened to allow a cellmate to leave
for kitchen duty, Craven ran out of the cell, yelling that the
officer who had opened the door was “going to get hurt” and was “a
fucking asshole.” On another occasion, when an officer told Craven
to stop kicking his cell door and making disruptive animal noises,
Craven told the officer to take his disciplinary report and “wipe
[his] ass with it, that’s all it’s good for.”
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someone who was raised without discipline or structure. Dr.
Weisman testified that his conclusion regarding Craven’s prognosis
remained the same despite these incidents, stating that “within the
extremes of a perfect record and an out-of-control, unmanageable
end at the other, clearly he falls within limits that in my mind
still bode for the same outcome and the same intervention.”
The district court sentenced Craven to 151 months, which
constituted a 37-month downward departure from the 188- to 235-
month range to which he otherwise would have been subject. The
sentence was identical to the sentence imposed by the first
sentencing judge. The district court found that Craven had
demonstrated extraordinary rehabilitation by refraining from drug
use and drug sales for a period of nearly two years prior to his
arrest. The court noted that the defendant’s disciplinary record
after his first sentencing was good, and described the defendant’s
prior disciplinary violations as “a period of aberrant behavior
that the doctor himself explained. It’s as though it was some sort
of pressure cooker that he was going into and the doctor
understands that.” In its statement of reasons, the district court
concluded:
Defendant's post offense rehabilitation is so
extraordinary as to warrant the downward
departure. The court has found that the
defendant's fundamental change in attitude and
radical alteration in lifestyle entitle the
defendant to the downward departure.
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II. Analysis
As in Craven I, we begin by acknowledging that
“[o]rdinarily, presentence rehabilitation is not a permissible
ground for departure because it can be factored adequately into the
sentencing equation by an acceptance-of-responsibility credit.”
Craven, 239 F.2d at 99 (citing U.S. Sentencing Guidelines Manual §
3E1.1, cmt. n.1(g)). Even so, in extraordinary circumstances, such
a departure may be appropriate. See id. In determining whether
these circumstances are present, we engage in a three-pronged
analysis:
we evaluate whether the circumstances cited by
the district court are sufficiently unusual to
justify the departure. If so, we next inquire
into whether those circumstances are
adequately documented in the record. If the
departure clears these two hurdles, we then
measure its reasonableness.
Id. The defendant bears the burden of proving that he is eligible
for a downward departure. United States v. Sachdev, 279 F.3d 25,
28 (1st Cir. 2002). The parties dispute whether we should give
some deference to the district court’s findings in the wake of the
PROTECT Act, Pub. L. No. 108-21, 117 Stat. 650 (2003); see United
States v. Frazier, 340 F.3d 5, 14 (1st Cir. 2003), but we need not
resolve this issue because we find that the downward departure is
not sustainable even under the more deferential tripartite
standard. See United States v. Sanchez, --- F.3d ---, Nos. 02-
2504, 02-2566, 2004 WL 32864, at *7 (1st Cir. Jan. 7,
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2004)(reviewing a departure claim without determining which
standard of review applies by using the more defendant-friendly of
the standards).
Looking to the first of the three applicable questions,
the only identified bases for concluding that extraordinary
rehabilitation had occurred were the district court's findings that
there had been a presentencing period of almost two years without
drug selling or drug use,4 that there had been a "radical
alteration" in Craven's lifestyle, and that Craven’s prison record
had been clean in the two years after sentencing. The question
before us is whether the district court acted within its discretion
in concluding that this rehabilitation is so extraordinary that it
merits a downward departure.5 As we noted in Craven I, “[t]he
touchstone of extraordinary rehabilitation is a fundamental change
in attitude.” Craven, 239 F.3d at 100. There, we expressed
considerable skepticism as to whether a downward departure would be
appropriate in light of Craven's presentencing disciplinary record.
4
The defendant in fact had stated that he had ceased drug use
approximately thirteen months prior to his arrest.
5
In two prior cases, we have rejected downward departures on
the basis of rehabilitation from drug addiction. See United States
v. Rushby, 936 F.2d 41, 43 (1st Cir. 1991); United States v. Sklar,
920 F.2d 107, 117 (1st Cir. 1990). Craven attempts to distinguish
these cases because the defendants’ rehabilitative efforts in
Rushby and Sklar began after their respective arrests. In Craven
I we found this distinction to be insignificant, noting the
district court’s finding that Craven was aware that he was the
subject of a criminal investigation before he began his
rehabilitation efforts.
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See id. We left open the possibility, however, that some portion
of the ex parte communication between the court and the expert
witness (later recounted as in-court testimony on remand) might
have rendered Craven's situation unique. See id. at 100-01.
We are no more persuaded by the defendant's evidence of
rehabilitation on remand than we were in Craven I. Surely
extraordinary rehabilitation means something more than merely
behaving lawfully after years of criminal activity. Even if the
defendant's conduct in the period preceding his arrest could meet
the high threshold for a downward departure, his disruptive and
sometimes violent behavior while detained before sentencing
undermines his claim of extraordinary rehabilitation. Dr.
Weisman's testimony that Craven's conduct was "within the extremes"
of what he would expect from someone who was adjusting to
incarceration hardly distinguishes the defendant from the heartland
of other offenders who claim rehabilitation. Under these
circumstances, the district court's finding that Craven's
rehabilitation was different from the ordinary case was not
plausible. Cf. United States v. Cunningham, 201 F.3d 20, 28 (1st
Cir. 2000). Because we so find, we do not address whether the
circumstances cited by the district court were adequately
documented, or whether the departure was reasonable.
III. Conclusion
For the foregoing reasons, we reverse the downward
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departure and remand for resentencing within the applicable
guidelines sentencing range of 188 to 235 months.
So ordered.
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