United States Court of Appeals,
Eleventh Circuit.
No. 94-9061.
UNITED STATES of America, Plaintiff-Appellee,
v.
Malcolm Benoni WITHROW, Defendant-Appellant.
June 13, 1996.
Appeal from the United States District Court for the Northern
District of Georgia. (No. 1:94-CR-135-1), William C. O'Kelley,
Judge.
Before BIRCH, Circuit Judge, and CLARK and WEIS *, Senior Circuit
Judges.
BIRCH, Circuit Judge:
Malcolm Benoni Withrow appeals the sentence he received
following a plea of guilty to the offense of armed robbery of a
motor vehicle. See 18 U.S.C. § 2119. He contends that the
district court erroneously declined to depart downward on the
ground that Withrow's offense conduct constituted a single,
aberrational act. Whether a district court has the discretion to
depart downward based on a factual determination that the
defendant's criminal behavior was the product of a single, aberrant
episode is an issue of first impression in this circuit.
I. BACKGROUND
On February 20, 1994, Withrow and four companions went to a
Pizza Hut located across the street from a skating rink, drove
around the skating rink parking lot, and selected a vehicle—a Jeep
Cherokee—to rob. The four men went back to the Pizza Hut parking
*
Honorable Joseph F. Weis, Jr., Senior U.S. Circuit Judge
for the Third Circuit, sitting by designation.
lot, waited until the Jeep's owner, Milton Edwards, returned to his
car, and proceeded to follow him in their car. After about one
mile, Edwards exited to a gas station. Withrow and his companions
parked nearby. Withrow walked to the gas station, approached
Edward's Jeep, pointed a gun at him, and demanded the keys to the
car. Withrow took the keys, entered the Jeep from the passenger
side, pulled a nylon stocking over his head, and instructed Edwards
to drive out of the gas station. While the car was moving, Edwards
attempted to grab Withrow's gun. A struggle ensued, the gun
discharged, and the Jeep was struck by another vehicle.
At sentencing, Withrow requested a downward departure based on
what he contended was a single episode of aberrant behavior. In
support of this request, Withrow's mother testified that Withrow
had been, up until the time he committed this carjacking, a
responsible son, grandson, and father, and that he had never
committed any violent act. The court refused to depart and stated
that Withrow's request was not "recognized or justified in the
law." R2-28. In an attempt to clarify the basis of the court's
ruling, the following exchange between Withrow's counsel and the
sentencing judge subsequently occurred:
Counsel: For clarification, is it the court['s] ruling that
it is of the opinion that the Eleventh Circuit has taken away
the authority under a single act of aberrational behavior.
Court: I believe that's the rule under the Guidelines and I
believe that's the rule in the Eleventh Circuit. I believe
those are not factors that the court should take into—that
that's a factor that the court should take into consideration
in attempting to depart. Frankly, I think if the court tried
to depart, it would be reversible error.
Id. at 29.
Ordinarily, we will not review a district court's denial of
a request for downward departure. United States v. Hadaway, 998
F.2d 917, 919 (11th Cir.1993). However, a district court's refusal
to depart is reviewable on appeal if the court's decision was based
on the belief that it lacked the authority to consider a departure.
United States v. Williams, 948 F.2d 706, 708 (11th Cir.1991). See
also United States v. Fossett, 881 F.2d 976, 979 (11th Cir.1989)
(holding that a defendant's assertion that "the district court did
not believe it had the statutory authority to depart from
sentencing guideline range ... presents a cognizable claim on
appeal"). The district court's determination that it lacked the
authority to depart from the Sentencing Guidelines is reviewed de
novo. Id. Here, the district court's decision to refuse Withrow's
request for downward departure was based explicitly on the court's
understanding that it lacked the discretion to consider such a
request. In light of the court's unambiguous statement that it was
not authorized to depart in this case, we conclude that the court's
decision is reviewable. We therefore address whether the
Sentencing Guidelines permit a downward departure based on the
specific factor advanced by Withrow.
II. DISCUSSION
A district court must impose a sentence within the guideline
range "unless the court 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 that should result in a sentence
different from that described." 18 U.S.C. § 3553(b). The
Sentencing Commission has stated that "[t]he controlling decision
as to whether and to what extent departure is warranted can only be
made by the courts." U.S.S.G. § 5K2.0 (1994). In reviewing this
challenge to a sentence, we give due deference to the district
court's application of the guidelines to the facts and accept the
findings of the district court unless they are clearly erroneous.
18 U.S.C. § 3742(e).
An introductory policy statement in the guidelines entitled
"Probation and Split Sentences" contains a discussion of
pre-guidelines practice concerning first-time offenders convicted
of non-violent but "serious" offenses. See U.S.S.G. Ch. 1, Pt. A,
4(d). This section provides a specific framework to which the
court must refer in sentencing a first-time offender who likely
would have received a probationary sentence under the
pre-guidelines regime. The concluding sentence of the discussion
states that "[t]he Commission, of course, has not dealt with the
single acts of aberrant behavior that still may justify probation
at higher offense levels through departures." Id.
All circuits that have addressed and resolved the question
posed by this appeal have concluded that single acts of aberrant
behavior were excluded from consideration in the formulation of the
guidelines and thus might justify sentences below the guideline
range even in cases where probation is not a viable option. See,
e.g., United States v. Duerson, 25 F.3d 376, 380 (6th Cir.1994).
In United States v. Carey, 895 F.2d 318 (7th Cir.1990), the Seventh
Circuit concluded that the district court had clearly erred in
finding that the defendant's check-kiting scheme spanning fifteen
months constituted a single episode of aberrant conduct. In
reversing the sentencing court's decision to depart downward on
this basis, the court provided a reasoned examination of what might
give rise to a such a departure:
While the Guidelines provide no guidance as to what
constitutes a single act of aberrant behavior, we believe it
must be more than merely something "out of character' or the
defendant's first offense. [The defendant's] otherwise
exemplary life before becoming involved in this check-kiting
scheme does not render his actions, on their own, a single act
of aberrant behavior to support a departure. Instead, we
believe that there must be some element of abnormal or
exceptional behavior. [The defendant's] actions were
apparently the result of extensive planning and were spread
out over a fifteen-month period. A single act of aberrant
behavior, however, generally contemplates a spontaneous and
seemingly thoughtless act rather than one which was the result
of substantial planning because an act which occurs suddenly
and is not the result of a continued reflective process is one
for which the defendant may be arguably less accountable.
Id. at 325. The court further noted that "[u]nder the reasoning of
the Guidelines, the court can consider first offender status in its
determination of a single act of aberrant behavior only where it
finds "unusual circumstances' and the factor is "present to a
degree substantially in excess to that which is ordinarily
involved.' " Id. at n. 4.
The definitional framework set forth by the Seventh Circuit in
Carey has been adopted to varying degrees by the majority of
circuits that have confronted this issue. See, e.g., United States
v. Duerson, 25 F.3d 376, 380 (6th Cir.1994) ("Whether or not the
Commission intended only a limited application of the [aberrant
behavior'] principle, we have no reason to doubt that a district
court can give a first offender a prison sentence below the
guideline range, as opposed to giving him probation, where the
facts justify a finding that his crime truly was a single act of
aberrant behavior."); United States v. Premachandra, 32 F.3d 346,
349 (8th Cir.1994) ("Because the Sentencing Commission did not
consider single acts of aberrant behavior when formulating the
guidelines, we have recognized that a spontaneous and seemingly
thoughtless act may be a basis for departure."); United States v.
Williams, 974 F.2d 25, 26 (5th Cir.1992) ("Although the Guidelines
do not define "aberrant behavior,' we are most certain that it
requires more than an act which is merely a first offense or "out
of character' for the defendant ... [as] those considerations are
taken into account in calculating the defendant's criminal history
category."), cert. denied, 507 U.S. 934, 113 S.Ct. 1320, 122
L.Ed.2d 706 (1993) (citation omitted). But see United States v.
Tsosie, 14 F.3d 1438, 1441 (10th Cir.1994) (expanding Carey to hold
that "[t]he totality of circumstances must be viewed to see whether
the offense fits within [the defendant's] normal conduct or if it
is a complete shock and out of character").
Although the circuits uniformly have held that a single act of
aberrant behavior is a mitigating circumstance that may permit a
district court to depart from the guideline range, there exists a
wide spectrum of factual circumstances under which each court has
found aberrant conduct warranting departure to exist. Compare
United States v. Takai, 941 F.2d 738, 743 (9th Cir.1991)
(defendants convicted of bribing government official to obtain
green cards found to have committed single, aberrant action; court
found that one defendant "actually consulted a lawyer and withdrew
from the scheme so far as he would get any personal benefit," while
the other "stumbled into something awkwardly, naively, and with
insufficient reflection on the seriousness of the crime....") with
Premachandra, 32 F.3d at 349 (where defendant committed two armed
bank robberies wearing a ski mask over course of two years, court
found that "[t]he robberies ... were neither spontaneous nor
thoughtless. To the contrary, the record indicates that the
robberies were planned rather than impulsive").
We find persuasive the overwhelming weight of authority
holding that a district court does have the discretion to depart
downward after making a careful factual determination that the
defendant's conduct constituted a single, aberrant act. In accord
with our sister circuits, we further conclude that such an act is
not established unless the defendant is a first-time offender and
the crime was a spontaneous and thoughtless act rather than one
which was the result of substantial planning. See Carey, 895 F.2d
at 324-25. Although the district court in this instance made no
factual findings regarding the nature of Withrow's actions, we are
convinced that the offense conduct giving rise to Withrow's
conviction for carjacking was neither spontaneous nor was it
lacking in planned preparation.1 As previously stated, Withrow and
his companions drove around a parking lot with the express purpose
of looking for a car to steal. During the time it took Withrow to
locate a desirable vehicle to rob, he had an opportunity to either
1
Although we acknowledge that the district court did not
have an opportunity to make a factual determination in this case
regarding whether Withrow's conduct was "aberrant" under any
acceptation of that term, the record has been developed
adequately for us to conclude that such a finding would not be
appropriate here. See United States v. Jones, 52 F.3d 924, 927
(11th Cir.) (holding that "[n]o remand is necessary ... [where]
no additional facts need be developed, and any district court
decision of the issue would be reviewed de novo...."), cert.
denied, --- U.S. ----, 116 S.Ct. 265, 133 L.Ed.2d 187 (1995).
reflect upon the action he was about to take and withdraw or to
devise a plan to commit the car theft. Choosing the latter option,
Withrow pointed a gun to the driver's head, entered the car, and
pulled a stocking over his head to conceal his identity. We are
mindful of the testimony offered by Withrow's mother at sentencing,
in which she expressed the view that Withrow's criminal conduct was
inconsistent when viewed in the context of his life as a whole.
This factor alone, however, does not suffice to render a
defendant's conduct "aberrant;" rather, Withrow's actions appear
to have been the result of some planning and preparation, and do
not comport with the definition of a single, aberrant act that we
have adopted. We therefore hold that although the district court
erred in determining that it did not have the authority to depart
downward in this case, the record does not support a finding that
Withrow's conduct constituted a single, aberrant act.
III. CONCLUSION
Withrow contends that the district court should have departed
downward at sentencing based on the fact that his offense conduct
constituted a single, aberrant act. We conclude that the district
court had the discretion to depart downward in this case because
the mitigating factor urged by Withrow was not adequately
considered by the Sentencing Commission in formulating the
Sentencing Guidelines. We further resolve, however, that the
record does not support a finding that Withrow's criminal conduct
was impulsive, spontaneous, or unplanned, and thus does not fall
squarely within the definitional purview of a single, aberrant act.
Accordingly, we AFFIRM.