[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
January 2, 2003
No. 01-13532 THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 00-00053-CR-4-002
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BERNARD ADAMS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(January 2, 2003)
Before BIRCH and BLACK, Circuit Judges, and PROPST*, District Judge.
BLACK, Circuit Judge:
*
Honorable Robert B. Propst, United States District Judge for the Northern
District of Alabama, sitting by designation.
Bernard Adams appeals his sentence imposed after he pled guilty in 2001 to one
count of knowingly and intentionally possessing with intent to distribute more than
fifty grams of cocaine base. Appellant had two prior convictions—in 1994 and
1997—for carrying concealed weapons. These prior convictions constitute “crimes
of violence” within the meaning of the career offender sentencing guideline. See
U.S.S.G. §§ 4B1.1, 4B1.2; United States v. Gilbert, 138 F.3d 1371, 1372 (11th Cir.
1998). Accordingly, Appellant was treated as a career offender, which placed him in
Criminal History Category VI, and consequently sentenced under the Guidelines to
262 months’ imprisonment.1 At his sentencing hearing, Appellant sought a downward
departure, claiming his criminal history was seriously overrepresented. The district
court denied his motion. He now appeals, raising the following issue: “Did the trial
court correctly determine that it did not have the legal authority to downward depart
where the trial court agreed that the defendant’s criminal history was less serious than
other Category VI defendants?”
As an initial matter, we note that a defendant may not usually appeal a district
court’s refusal to depart downward. United States v. Baker, 19 F.3d 605, 614–15
1
At his sentencing, Appellant objected that his concealed weapons offenses
were not crimes of violence. That objection is contrary to this Court’s holding in
Gilbert, which we will not revisit here. Cargill v. Turpin, 120 F.3d 1366, 1386
(11th Cir. 1997) (“The law of this circuit is ‘emphatic’ that only the Supreme Court
or this court sitting en banc can judicially overrule a prior panel decision.”).
2
(11th Cir. 1994). There is an exception to this rule, however, for those cases in which
the court erroneously believed it lacked authority to depart. Id. at 615. Appellant
claims the district court did not recognize its authority to depart downward in his case.
At the sentencing hearing, the district court stated the following:
All right. I’m not going to depart downward. The reason is this:
First, it is clear that the career offender provision applies. Second, I do
have discretion to depart downward on the conclusion that the criminal
history substantially overrepresents the seriousness of the defendant’s
criminal history.
....
But it is clear that I can depart downward even in a career offender
situation on the conclusion that the criminal history ranking
overrepresents the seriousness of a defendant’s history. That’s
established by United States vs. Webb, 139 F.3d 1390, an Eleventh
Circuit 1998 case.
So, I recognize the discretion. I choose not to depart downward.
I do so based on this analysis:
And let me preface my remarks by saying that part of this is a
legal analysis. I recognize that the law ordinarily is that a discretionary
determination not to depart is not reviewable, but part of my analysis is
based on this legal analysis, which seems to me is a legal issue of the
kind that ordinarily is reviewable.
It seems to me that in exercising my discretion, the comparison I
should make is not between Mr. Adams on the one hand and the ordinary
or usual Category VI defendant. The ordinary or usual Category VI
defendant most of the time is somebody who has run up 12 criminal
history points. It seems to me, however, that the proper comparison for
3
me is between Mr. Adams, on the one hand, and the ordinary or usual
person who gets a Category VI because he meets the career offender
provision. That is, it seems to me that the Congress and the Sentencing
Commission have made the decision that somebody gets moved into
Category VI as a result of having two prior qualifying offenses.
....
So, if I look at Mr. Adams and I say, “How is Mr. Adams’
criminal history compared to most people I see who are Category VI?”
it’s a lesser history. He got three points. People in Category VI got 12
or more. They usually have a more extensive—they do have a more
extensive criminal history.
On the other hand, if I look at Mr. Adams compared to the
ordinary, the heartland case, where somebody had the level increased
because they were a career offender, my conclusion is that Mr. Adams
is not outside of the heartland. There are a number of cases I see where
people have two qualifying offenses; and, as a result of two or more
qualifying offenses, they are treated a career offender [sic]. That is
precisely what the Congress and the Sentencing Commission intended.
And so, if I look at this and I say, “I’m going to compare the defendant
to the ordinary category of Criminal History Category VI,” then what I
have done essentially is to override essentially the legislative
determination that somebody with two qualifying offenses should be
treated more harshly.
So, if I’m wrong about that, then . . . , it seems to me the Eleventh
Circuit ought to tell me I’m wrong in that approach, and I will be happy
to look at the question of whether I would depart downward for Mr.
Adams, because I think his criminal history is not as substantial as the
heartland defendant who has a Category VI.
The transcript of the sentencing hearing reveals two things: (1) the district court
did recognize it had the discretion to depart downward, assuming there was an
appropriate basis for doing so in Appellant’s case; and (2) it made its decision not to
4
depart downward based upon a legal interpretation of the correct “heartland” against
which to compare Appellant when deciding whether his criminal history was
overrepresented. The district court was quite clear it possessed the discretion to depart
downward. This is not a case in which the district court was “bewildered and
ambivalent as to whether the guidelines authorized a downward departure.” United
States v. Webb, 139 F.3d 1390, 1394 (11th Cir. 1998). To the contrary, the district
court expressly noted its discretion to depart in three separate statements. At most, the
district judge appeared to be ruminating about the need for guidance from this Court
as to which group of defendants—all Category VI defendants or only those defendants
placed in Category VI by virtue of being career offenders under U.S.S.G. §
4B1.1—served as the appropriate heartland against which to compare Appellant in
deciding whether to exercise his undoubted discretion to depart downward.
Despite the district court’s recognition of its discretion to depart downward, we
nonetheless review Appellant’s sentence. We do so because, while the district court
raised an interesting legal question, it was the wrong question to ask on the facts of
this case. It appears the district court applied the wrong guideline when it analyzed
Appellant’s motion for a downward departure under U.S.S.G. § 5K2.0. This Court
has always recognized the distinction between guided and unguided departures.
United States v. Smith, 289 F.3d 696, 710 (11th Cir. 2002). Unguided departures,
5
which proceed under U.S.S.G. § 5K2.0, are those not explicitly provided for in the
Guidelines—i.e., they are departures for cases falling outside the heartland created by,
inter alia, the guided departures established by the Sentencing Commission in
formulating the Guidelines. Id. Analysis under U.S.S.G. § 5K2.0 is unnecessary
where the Guidelines provide a specific basis for the relevant departure. United States
v. Hoffer, 129 F.3d 1196, 1201 (11th Cir. 1997).
Downward departures for overrepresentation of criminal history are specifically
provided for in U.S.S.G. § 4A1.3. Smith, 289 F.3d at 710 (“[T]he only permissible
basis for a criminal history departure based on overrepresentation in this case was
under U.S.S.G. § 4A1.3, and not under U.S.S.G. § 5K2.0.”). The district court
therefore conducted the incorrect analysis when it denied Appellant’s motion for a
downward departure.
Even under U.S.S.G. § 4A1.3, however, Appellant would not receive a
downward departure. As we explained in United States v. Rucker, 171 F.3d 1359,
1363 (11th Cir. 1999), and United States v. Phillips, 120 F.3d 227, 232 (11th Cir.
1997), U.S.S.G. § 4A1.3 is concerned with the pattern or timing of prior convictions.
See also Smith, 289 F.3d at 713. Appellant’s criminal history differs from the
benchmark given in the commentary to the Guidelines: “An example [of when a
downward departure is warranted] might include the case of a defendant with two
6
minor misdemeanor convictions close to ten years prior to the instant offense and no
other evidence of prior criminal behavior in the intervening period.” U.S.S.G.
§ 4A1.3, p.s. Appellant’s 1994 and 1997 concealed weapons offenses are not so
temporally remote from his instant offense. In addition, there is evidence of
intervening criminal behavior beyond the two concealed weapons offenses that
rendered Appellant a career offender. When we look to the pattern or timing of
Appellant’s prior criminal behavior, we do not think his career offender status
seriously overrepresents his criminal history. Even under U.S.S.G. § 4A1.3,
Appellant’s motion for a downward departure would have been denied.
Based upon a full review of the record, we conclude the district court did not
abuse its discretion in denying Appellant’s motion for a downward departure.
AFFIRMED.
7
PROPST, District Judge, dissenting:
I believe that the quoted language of the district court at the sentencing hearing
reflects the type of ambivalence noted in United States v. Webb, 139 F.3d 1390, 1395
(11th Cir. 1998), and, thus, that we should “resolve the ambiguity. . . in favor of the
defendant and hold that the court’s decision was based on its belief that it lacked the
discretion to grant [Adams’] request for departure.” Id. at 1395.
I base this on, inter alia, the following portions of the district court’s language
at sentencing.
And let me preface my remarks by saying that part of this is a
legal analysis. I recognize that the law ordinarily is that a discretionary
determination not to depart is not reviewable, but part of my analysis is
based on this legal analysis, which seems to me is a legal issue of the
kind that ordinarily is reviewable.
....
...And so, if I look at this and I say, “I’m going to compare the
defendant to the ordinary category of Criminal History Category VI,”
then what I have done essentially is to override essentially the legislative
determination that somebody with two qualifying offenses should be
treated more harshly.
So, if I’m wrong about that, then, Mr. Gray, it seems to me the
Eleventh Circuit ought to tell me I’m wrong in that approach, and I will
be happy to look at the question of whether I would depart downward for
8
Mr. Adams, because I think his criminal history is not as substantial as
the heartland defendant who has a Category VI.
....
So, if I look at Mr. Adams and I say, “How is Mr. Adams’
criminal history compared to most people I see who are Category VI?”
it’s a lesser history. He got three points. People in Category VI got 12
or more. They usually have a more extensive – they do have a more
extensive criminal history.
The majority states that “the district court expressly noted its discretion to
depart in three separate statements.” In Webb, the court quoted the following from the
district court sentencing hearing:
Mr. Vineyard [the prosecuting attorney]: I want to make sure the
record is clear the court recognizes it has the authority to downwardly
depart but chose not to do so.
The Court: That’s what I said.
Id. at 1392.
Nothwithstanding that position of the district court, the Webb court stated:
...As noted, the record is far from clear as to the rationale
underlying the court’s denial of Webb’s request for downward departure;
on balance, however, the record more strongly suggests that the court
believed that it was not authorized to depart downward in this case. We
therefore resolve the ambiguity reflected in the record with respect to
this issue in favor of the defendant and conclude that the court’s decision
was based on its belief that it lacked the discretion to grant Webb’s
request for a departure. See United States v. Hadaway, 998 F.2d 917,
9
919 (11th Cir. 1993) (“Although the record is somewhat ambiguous, it
appears that the district court declined to depart downward because it
lacked the authority to do so rather than because it determined that the
facts did not warrant a departure”).
Id. at 1395.
It is apparent that the district court felt that, once it determined that Adams was
in a career offender status, it could not depart downward because Adams had been
placed in Category VI merely because of his career offender status just like other
career offenders. At least, the district court was ambivalent in this regard. That
approach was too restrictive and the district court’s review should have been based on
a consideration of whether Adams’ Category VI generally overrepresented the
seriousness of his criminal history. Limiting the analysis to a comparison to other
career offenders might result in downward departures never being granted to career
offenders. We should remand the case as to Adams for a further sentencing hearing.1
As in Webb, “[I] express no view as to whether a downward departure should, in fact,
be granted in [Adams’] case, but [I would] hold that the district court may exercise its
1
See United States v. Spencer, 25 F.3d 1105, 1112 (D.C. Cir. 1994) (“However, we may rule on Spencer’s
claim that the district court misconstrued the scope of its discretion under U.S.S.G. § 4A1.3.”); United States v.
Beckham, 968 F.2d 47, 53 (D.C. Cir. 1992) (“Although a refusal to depart downward where there is authority to do
so is within the unreviewable discretion of the district court ..., we will remand a case for resentencing when the
district court indicates erroneously that ‘his discretion was constrained in a way that it actually was not.’”)
(Emphasis in original; citations omitted); United States v. Pickney, 938 F.2d 519, 521 (4th Cir. 1991) (“‘“[c]areer
offender” is a type of, not an alternative to, criminal history’ and the flexibility authorized by § 4A1.3 applies to
career offender status, as it does to other criminal history categories”) (citing United States v. Adkins, 937 F.2d 947,
952 (4th Cir. 1991)).
10
discretion to decide whether such a departure is warranted with respect to [Adams].”
139 F.3d at 1396.
I also question the holding in Rucker, cited by the majority, to the extent, if
any, that it suggests that the nature of the convictions qualifying for career offender
status cannot be considered in any way with regard to downward departure
determinations. I do not believe that it so holds. The Rucker case merely holds that
the district court cannot consider the quantity of the controlled substance involved in
an otherwise qualifying conviction. United States v. Govan, 293 F.3d 1248 (11th Cir.
2002), also involved the reversal of a downward departure based on a consideration
of the quantities of drugs.
I am not aware of any cases which hold that the district court, in determining
whether to downwardly depart in a career offender case, cannot consider the type of
charges resulting in qualifying convictions. Surely, two murder or two kidnapping
convictions would be deemed to be more serious than two concealed weapons
convictions. I suggest that the district court should be able to consider such disparate
conduct. If not, common sense has been barred from the analysis. If carrying a
concealed weapon is not less “serious” than murder or kidnapping, the word has lost
its meaning. Since this issue has not been addressed by the parties on this appeal, I
11
would hold that the district court can, on remand, first address whether such a basis
for downward departure is permissible under the holdings of this court.
I further reference the following cases which suggest that whether the facts of
a purported career offender-type violation can be considered may depend upon
whether the crime is one that is specifically listed under §§ 4B.1 and 4B.2 as a crime
of violence. Having a concealed weapon is not so listed. See United States v. Garcia,
42 F.3d 573, 577 (10th Cir. 1994) (“The language used by the Commission indicates
that, for purposes of determining whether an individual is a career offender under
USSG § 4B1.1, the fact he has been convicted of an offense such as ‘burglary of a
dwelling’ that is specifically listed as a ‘crime of violence’ forecloses further inquiry
by the sentencing court.”); United States v. Telesco, 962 F.2d 165, 166 (2d Cir. 1992)
(“Application note 2 to this section lists additional crimes that are ‘categorically
classif[ied]’ as ‘crimes of violence.’”); United States v. Wright, 957 F.2d 520, 521 (8th
Cir. 1992) (“Because use or threatened use of force is an element of robbery, a person
convicted of robbery has been convicted of a crime of violence. . . . The guideline
note's statement that ‘ “[c]rime of violence” includes ... robbery’ supports our view.”)
(citation omitted); United States v. Parson, 955 F.2d 858, 871-72 (3d Cir. 1992)
(same); United States v. Wilson, 951 F.2d 586, 588 (4th Cir. 1991) (same); United
States v. McAllister, 927 F.2d 136, 139 (3d Cir. 1991) (same); and United States v.
12
Terry, 900 F.2d 1039, 1042 (7th Cir. 1990) (same). To the extent that Eleventh
Circuit law is to the contrary, I think that it should be re-examined. At the very least,
a district court should be able to determine if the possession of a concealed weapon
actually involved any potential violence. This would not be the same as determining
guilt or innocence of the offense.
I further question whether § 4B1.1 career offender status should be based at all
upon convictions for the offense of merely carrying a concealed weapon.2 Such
convictions do not clearly fit either of the following § 4B1.2 definitions of a “crime
of violence:”
The term “crime of violence” means an offense under federal or
state law, punishable by imprisonment for a term exceeding one year,
that: (1) has as an element the use, attempted use, or threatened use of
physical force against the person of another, or (2) is burglary of a
dwelling, arson, or extortion, involves use of explosives, or otherwise
involves conduct that presents a serious potential risk of physical injury
to another.
The carrying of a concealed weapon is not one of the offenses specifically listed in the
Application Notes to § 4B1.2.3 Apparently, however, United States v. Gilbert, 138
2
I agree with Judge Cox’s dissent in United States v. Hall, 77 F.3d 398, 402-03 (11th Cir. 1996).
3
Application Note 1 includes the following:
“Crime of violence” includes murder, manslaughter, kidnapping, aggravated assault,
forcible sex offenses, robbery, arson, extortion, extortionate extension of credit, and burglary of a
dwelling. Other offenses are included as “crimes of violence” if (A) that offense has as an element
the use, attempted use, or threatened use of physical force against the person of another, or (B) the
conduct set forth (i.e., expressly charged) in the count of which the defendant was convicted
13
F.3d 1371 (11th Cir. 1998), has resolved that issue.4 It is ironic, as argued by Adams’
counsel, that carrying a concealed weapon by a non-felon is a crime of violence, but
possession of a firearm by a felon is not. Compare Gilbert, 138 F.3d at 1372
(carrying a concealed weapon), with Stinson v. United States, 508 U.S. 36, 47 (1993)
(possession of a firearm by a felon).
The initial harshness of including all concealed weapon violators as violent
offenders is exacerbated by the restrictions placed on downward departures by cases
such as Rucker. I recommend that the holdings including all concealed weapon
violations under the umbrella of career offender analysis be reviewed by this court en
banc under a plain error analysis. What type of “weapons” are considered: firearms
only, knives, scissors, others?5 What if kept for protection or self-defense? Is there
no exception?
In United States v. Whitfield, 907 F.2d 798, 800 (8th Cir. 1990), the court
stated:
involved use of explosives (including any explosive material or destructive device) or, by its
nature, presented a serious potential risk of physical injury to another.
4
It should be noted that Gilbert stated: “Gilbert is correct that the district court could have departed
downward if it had found Gilbert’s criminal history to be overrepresented. See U.S.S.G. § 4A1.3 (policy statement)
(downward departure may be appropriate for defendant with extensive history of petty crime.)” 138 F.3d at 1373
(citing United States v. Lindia, 82 F.3d 1154, 1165 (1st Cir. 1996). The court in Gilbert based its decision, at least in
part, on the fact that “the district court did not suggest that Gilbert’s criminal history did not adequately reflect the
seriousness of his conduct.” 138 F.3d at 1373. The district court here did so suggest.
5
This judge was recently required to relinquish some scissors at the Birmingham Airport.
14
Whitfield also claims his conviction of carrying a concealed
weapon under Mo. Ref. Stat. § 571.030(1) (1985) is not a violent felony.
We agree. Although carrying an illegal weapon may involve a
continuing risk to others, the harm is not so immediate as to “present[]
a serious potential risk of physical injury to another.” 18 U.S.C. §
924(c)(2)(B)(ii); see also United States v. Johnson, 704 F. Supp. 1403,
1407 (E.D. Mich. 1989) (carrying a concealed weapon is not a violent
felony), aff’d per curiam, 900 F.2d 260 (6th Cir. 1990).
In United States v. Chapple, 942 F.2d 439, 442 (7th Cir. 1991), the
court stated:
The district court in our case concluded that “carrying a handgun
in one’s belt in a city while using public transportation has a great
potential for serious injury to the public.” The government also
emphasized the inherent danger of this concealed weapon. While we
agree that the potential for a dangerous, violent act is enhanced by the
possession of any weapon-brass knuckles, black jacks, knives, chains or
handguns-unless the use of the weapon is overtly implied it is not a
crime of violence under the Sentencing Guidelines.
In this case Chapple was riding in a Chicago taxi in daylight hours
with a handgun tucked in the waistband of his pants. The gun was not
displayed or brandished. There is no evidence that even any touching,
gesturing or reference to the gun occurred. Nothwithstanding the
deference we must give the district court in its application of the
Guidelines, the threat posed by simple possession of a weapon, without
more, does not rise to the level of an act that “by its nature, presented a
serious potential risk of physical injury to another.”
In United States v. Frazier-El, 204 F.3d 553, 563 (4th Cir. 2000), the court
noted the split between the Eleventh and Eighth Circuits.
15
In summary, I believe that there are a number of reasons why this court
should consider these issues en banc. An en banc guide on all these issues would
be beneficial to the district courts. In any event, I feel that the case should be
remanded for resentencing.
16