USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 94-1288
UNITED STATES,
Appellee,
v.
ROBERT A. MORRISON,
Defendant - Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]
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[Lawrence P. Cohen, U.S. Magistrate Judge]
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Before
Cyr and Stahl, Circuit Judges,
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and DiClerico,* District Judge.
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Owen S. Walker, Federal Defender Office, for appellant.
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David J. Apfel, Assistant United States Attorney, with whom
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Donald K. Stern, United States Attorney, was on brief for
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appellee.
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February 3, 1995
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* Of the District of New Hampshire, sitting by designation.
DICLERICO, District Judge. Defendant-appellant Robert
DICLERICO, District Judge.
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A. Morrison challenges the sentence imposed following his guilty
plea to robbery charges. Morrison does not dispute that the
sentence is within the Guideline Sentencing Range ("GSR")
required under the United States Sentencing Guidelines
("Guidelines" or "U.S.S.G."). He claims, however, that the court
mistakenly believed it lacked authority to depart below the GSR
and seeks a remand for a new sentencing hearing. We dismiss the
appeal for lack of appellate jurisdiction.
I
I
BACKGROUND
BACKGROUND
On December 2, 1993, Morrison pled guilty to a one-
count indictment charging him with robbery of Somerset Savings
Bank in Somerville, Massachusetts, in violation of 18 U.S.C.
2113(a). This was not Morrison's first offense. Morrison began
his criminal career at age seventeen with a shoplifting charge
that was dismissed upon payment of restitution. Soon thereafter
he was implicated in two minor cases that terminated in
dismissals. Prior to the Somerville robbery, his criminal record
included (1) a 1980 conviction for masked armed robbery of a
Bedford, Massachusetts, bank; (2) a 1982 conviction for a
December 1981 larceny; (3) a 1983 conviction for possession of
stolen mail; (4) a 1992 larceny-from-the-person conviction
stemming from a 1991 holdup of a CVS drugstore in Yarmouth,
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Massachusetts; and (5) a 1992 charge1 that he robbed a Mobil gas
station and mini-mart in New Hampshire.2 In addition, following
the Somerville robbery, Morrison pled guilty to a felon-in-
possession charge.3 Morrison has a history of alcohol abuse and
depression reaching back as far as his first criminal offense.
The presentence report ("PSR") concluded that Morrison,
by reason of his previous convictions for the 1980 armed robbery
and the 1991 larceny from the person, was a career offender.4
The PSR calculated an offense level of 32, minus three points for
acceptance of responsibility, for a total offense level of 29;
and a criminal history category of VI. A GSR of 151-188 months
resulted. Neither party objected to the PSR findings.
On February 16, 1994, Morrison filed a "Sentencing
Memorandum and Request for Downward Departure" ("sentencing
memorandum") seeking relief from the GSR pursuant to U.S.S.G.
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1 At the time of sentencing, the charge was pending.
2 During the period between 1980 and 1992, Morrison spent
significant time in prison. He was initially given probation for
the 1980 masked armed robbery conviction. That probation was
revoked and Morrison was incarcerated from December 16, 1983,
until he was paroled on December 11, 1984. His parole terminated
in December 1991. He also was imprisoned from January 10, 1992,
to July 27, 1992, for the larceny-from-the-person conviction.
3 Morrison allegedly robbed a convenience store in Spokane,
Washington, on September 11, 1992, just three days after the
Somerville robbery. After he was arrested, the police found a
sawed-off .22 caliber Ruger rifle and a box of .22 caliber
bullets in his hotel room. He was charged as a felon in
possession.
4 See 28 U.S.C. 994(h) (defendant is career offender if, inter
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alia, convicted of crime of violence after having been convicted
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of two or more felonies which were crimes of violence); see also
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U.S.S.G 4B1.1 (same).
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4A1.35 and Ch. I, Pt. A, intro. comment. (4)(b)6. Morrison
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5 Morrison cited to the portion of the Guidelines section that
states:
There may be cases where the court
concludes that a defendant's criminal
history category significantly over-
represents the seriousness of a
defendant's criminal history or the
likelihood that the defendant will commit
further crimes. An example might include
the case of a defendant with two minor
misdemeanor convictions close to ten
years prior to the instant offense and no
other evidence of prior criminal behavior
in the intervening period. The court may
conclude that the defendant's criminal
history was significantly less than that
of most defendants in the same criminal
history category (Category II), and
therefore consider a downward departure
from the guidelines.
U.S.S.G. 4A1.3.
6 The Guidelines introduction notes that
[t]he sentencing statute permits a
court to depart from a guideline-
specified sentence only when it finds "an
aggravating or mitigating circumstance of
a kind, or to a degree, not adequately
taken in to consideration by the
Sentencing Commission in formulating the
guidelines that should result in a
sentence different from that described."
The Commission intends the sentencing
courts to treat each guideline as carving
out a "heartland," a set of typical cases
embodying the conduct that each guideline
describes. When a court finds an
atypical case, one to which a particular
guideline linguistically applies but
where conduct significantly differs from
the norm, the court may consider whether
a departure is warranted.
U.S.S.G. Ch. I, Pt A., intro. comment. (4)(b) (quoting 18 U.S.C.
3553(b)).
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took the position that U.S.S.G. 4A1.3 authorizes sentencing
courts to consider departures in limited circumstances where
"reliable information indicates that the history category does
not adequately reflect the seriousness of the defendant's
criminal history." See U.S.S.G. 4A1.3. Morrison argued that
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the criminal history category calculated in the PSR significantly
overrepresented his criminal history and the likelihood that he
would commit further crimes because he was not a typical career
offender. The First Circuit has not yet determined whether
departures are prohibited in career offender cases. See United
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States v. Norflett, 922 F.2d 50, 54 n.5 (1st Cir. 1990).
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To establish that the circumstances of his case were
atypical, Morrison argued that the Somerville robbery (the crime
of conviction) and the 1991 larceny from the person (his second
predicate offense) should be merged because they were symptoms of
a "downward spiral" in his life manifested by heavy drinking and
suicidal thoughts that began following the loss of his job in
1990. Morrison noted that following a year of imprisonment in
1984, he had "become a productive member of society, attending
college, working in Colorado, and then working at MCI
Communications." However, by summer 1991, he had left MCI, was
"deeply disturbed" and had been hospitalized on several occasions
for his drinking problems. Morrison listed several events that
contributed to his "downward spiral," including two suicide
attempts for which he was hospitalized during the summer of 1991;
two weeks spent in detoxification in September 1991;
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hospitalization for depression and alcohol problems from October
25 to November 15, 1991; the December 11, 1991, robbery of the
Yarmouth CVS and the sentence served for the offense; a
subsequent move to Canada where he drank heavily and again
attempted suicide; hospitalization in Nashua, New Hampshire, on
September 2, 1992; a gas station robbery on September 7, 1992,
for which charges were pending against him; and the September 8,
1992, Somerville robbery. Morrison also set forth how, following
the Somerville robbery, he obtained a book on how to commit
suicide, flew to Spokane, Washington, and purchased a rifle with
the intention of killing himself.
Morrison attached a psychological evaluation by Robert
S. Ebert to his sentencing memorandum. In his evaluation, Dr.
Ebert diagnosed Morrison as suffering from "longstanding and
chronic depression." According to Dr. Ebert, "Morrison's most
recent criminal activities (as well as many of those in the past)
[apparently were] carried out in the context of a chronic
depression and severe alcoholism."
To support his contention that the court had authority
to depart in career offender cases, Morrison cited several other
circuit opinions addressing the issue and holding that the policy
statement found in U.S.S.G. 4A1.3 permits downward departure.
See, e.g., United States v. Bowser, 941 F.2d 1019 (10th Cir,
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1991); United States v. Pinckney, 938 F.2d 519 (4th Cir. 1991);
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United States v. Lawrence, 916 F.2d 553, 554-55 (9th Cir. 1990);
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United States v. Brown, 903 F.2d 540 (8th Cir. 1990).
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At his sentencing hearing, Morrison again argued the
facts and circumstances he contended made him an atypical career
offender. The government responded by arguing that the facts
presented did not amount to an atypical case. The government
noted that under U.S.S.G 5H1.4 and 5K2.13 mental defects
induced by alcohol or drinking problems should not serve as the
basis for a finding of atypicality.
The district court refused to grant Morrison's request
for a downward departure, stating:
From what I see, there were some four
alcohol-related hospital admissions
before '91. There were some six hospital
admissions related to alcohol and
depression after 1991. There were a
number of criminal convictions before,
and then there was the series of three or
four that occurred in the three- or four-
month space at the end of 1992.
I have some difficulty seeing how this
case is a case for a departure, as I
understand the criteria of Rivera. I can
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tell you, Mr. Walker, if I felt that I
had the authority to depart, I would.
And I think the sentence I would impose
would be in the range of six years. I do
not believe that I have the authority on
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the facts of this case to depart.
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And I note, for example, in the list of
cases you gave me, two of them involve
joint motions by the government and the
defendant. As you well know, it is my
view that the government has far greater
authority in sentencing matters these
days than does the Court, and this simply
proves it. The government isn't moving
to depart in this case. I do not think
the case fits within Rivera and,
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accordingly, will not depart.
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This appeal followed.
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II
II
THE DEPARTURE DECISION
THE DEPARTURE DECISION
Morrison argues that the district court erred in
finding that it was precluded as a matter of law from granting a
downward departure. He asserts that the district court failed to
impose a shorter sentence due to its mistaken belief that it did
not have the authority to depart. In support, Morrison directs
us to a single statement made by the court when rendering its
decision: "if I felt I had the authority to depart, I would."
The government responds that the district court's decision not to
depart does not reflect an incorrect application of the
Guidelines and is, therefore, unreviewable. The government
contends that the statement made by the district court, when read
in context, merely shows a "generalized expression of
apprehension regarding the Guidelines, not specific judicial
findings regarding the authority to depart in this particular
case." We agree.
The Sentencing Reform Act specifically defines when a
defendant can seek appellate review of a sentence. A defendant
may appeal a sentence if it was imposed as a result of an
incorrect application of the Guidelines. 18 U.S.C. 3742(a)(2).
"[A] refusal to depart cannot constitute an `incorrect
application' of the Guidelines." United States v. Tucker, 892
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F.2d 8, 10 (1st Cir. 1989). Consequently, no appeal lies from a
discretionary refusal to depart. United States v. Pierro, 32
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F.3d 611, 619 (1st Cir. 1994) (citing United States v. Tardiff,
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969 F.2d 1283, 1290 (1st Cir. 1992); United States v. Amparo, 961
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F.2d 288, 293 (1st Cir.) cert. denied, 113 S. Ct. 224, (1992);
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United States v. Hilton, 946 F.2d 955, 957 (1st Cir. 1991);
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United States v. Romolo, 937 F.2d 20, 22 (1st Cir. 1991)).
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Appellate jurisdiction does attach, however, where the decision
not to depart is based on the sentencing court's assessment of
its lack of authority or power to depart. Id.; Amparo, 961 F.2d
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at 292.
The difference between the rule and the exception has
been described as follows:
If the judge sets differential
factfinding and evaluative judgments to
one side, and says, in effect, "this
circumstance of which you speak, even if
it exists, does not constitute a legally
sufficient basis for departure," then the
correctness of that quintessentially
legal determination may be tested on
appeal. But if the judge says, in
effect, either that "this circumstance of
which you speak has not been shown to
exist in this case," or, alternatively,
that "while this circumstance of which
you speak might exist and might
constitute a legally cognizable basis for
a departure in a theoretical sense, it
does not render this particular case
sufficiently unusual to warrant
departing," then, in either such event,
no appeal lies.
Pierro, 32 F.3d at 619. Thus, an appeal lies if the departure
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decision is based on an assessment that the sentencing court is
powerless to depart on the grounds alleged by the proponent, but
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not if the court simply declines to exercise its discretionary
power to depart.
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When determining whether the sentencing court merely
refused to exercise its discretionary power to depart, we
consider the totality of the record and the sentencing court's
actions as reflected therein. See United States v. LeBlanc, 24
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F.3d 340, 348 (1st Cir.), cert. denied, 115 S. Ct. 250 (1994).
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We do not consider any single statement in a vacuum. United
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States v. DeCosta, 37 F.3d 5, 8 (1st Cir. 1994); see LeBlanc, 24
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F.3d at 348. Rather, it is necessary to view the statement in
the context of the hearing as a whole and the court's action as
reflected by the record. See DeCosta, 37 F.3d at 8.
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Prior to sentencing, a court considering departure must
ask:
"1) What features of this case,
potentially, take it outside the
Guidelines' 'heartland' and make of it a
special, or unusual, case?
2) Has the [Sentencing] Commission
forbidden departures based on those
features?
3) If not, has the [Sentencing]
Commission encouraged departures based on
those features?
4) If not, has the [Sentencing]
Commission discouraged departures based
on those features?"
United States v. De Masi, No. 92-2062, slip. op. at 41-42 (1st
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Cir. Oct 26, 1994) (quoting United States v. Rivera, 994 F.2d
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942, 949 (1st Cir. 1993)). "A court's subsequent analysis varies
depending on the category in which the feature justifying the
departure falls." Id. at 42. If the reasons presented for the
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departure fall into the discouraged category, those reasons
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generally will not suffice to take the case out of the
"heartland." Rivera, 994 F.2d at 949. The sentencing court must
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look to the Guidelines to determine if a certain feature is
discouraged. De Masi, No. 92-2062, slip. op. at 43.
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Morrison argued to the district court that he is an
atypical career offender because he was suffering from an
extended period of severe depression and alcohol abuse at the
time the second predicate offense and crime of conviction
occurred. Therefore, according to Morrison, the two crimes were
sufficiently connected or related to each other to qualify as
part of the "same course of conduct." See U.S.S.G. 1B1.3, app.
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note 9(b).7 The record reflects that the district court found
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7 U.S.S.G. 1B1.3(b) states:
Offenses that do not qualify as part of a
common scheme or plan may nonetheless
qualify as part of the same course of
conduct if they are sufficiently
connected or related to each other as to
warrant the conclusion that they are part
of a single episode, spree, or ongoing
series of offenses. Factors that are
appropriate to the determination of
whether offenses are sufficiently
connected or related to each other to be
considered as part of the same course of
conduct include the degree of similarity
of the offenses, the regularity
(repetitions) of the offenses, and the
time interval between the offenses. . . .
The nature of the offenses may also be a
relevant consideration.
U.S.S.G. 1B1.3(b), comment. 9(b). We have previously held that
robberies occurring on different days and at different places,
linked only by drug dependency, are not part of the same course
of conduct. United States v. Williams, 891 F.2d 962, 966 (1st
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Cir. 1989). "[The Guidelines] specifically stipulated that
robbery was to be regarded as a crime oriented toward single
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that the features of the case did not make it "special" or
"unusual" and, therefore, never reached the questions of whether
the offenses could be merged and whether courts have authority to
depart in career offender cases. Several factors lead to this
conclusion.
First, in announcing its decision the court made
repeated references to Rivera that indicated its familiarity with
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that decision. Rivera sets forth the power of a sentencing court
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to depart from the GSR where circumstances warrant departure.
See 994 F.2d at 949. Moreover, Rivera makes clear that it is the
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role of the sentencing court to make determinations about the
"ordinariness" or "unusualness" of a particular case. Id. at
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947. We have previously noted that a sentencing court's stated
familiarity with Rivera is an indicium that the court was aware
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of its authority to depart downwards. United States v. O'Connor,
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28 F.3d 218, 222 (1st Cir. 1994).
Second, at the sentencing hearing the government never
argued that the court was without authority to depart. Rather,
it was the government's contention that the facts of the case
presented no basis for exercising that authority. The government
outlined the reasons why Morrison's situation was not atypical
and did not take him outside the heartland.
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episodes of criminal behavior, and therefore not to be treated as
a continuing offense." Id. (citing U.S.S.G. Ch. 3, Pt. D, intro.
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comment.). Because we conclude that the district court made a
discretionary finding of no atypicality, there is no occasion to
review whether the rule enunciated in Williams applies to
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Morrison's circumstances.
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Third, the court stated: "I do not believe that I have
the authority on the facts of this case to depart." (emphasis
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added). This statement, coming on the heels of the government's
argument that Morrison's situation was not atypical, and coupled
with the court's references to Rivera, indicates that the court
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determined that the particular circumstances of this case did not
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warrant departure under the criteria outlined in Rivera. In this
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vein, the court pointedly used the phrase I "will not depart,"
clearly evidencing the discretionary nature of its decision.
Based on the facts presented to it in the sentencing
memorandum and at the sentencing hearing, the district court
found that Morrison's depression and alcohol abuse, and the
"downward spiral" resulting therefrom, did not present a
situation sufficiently atypical from that of most career
offenders to permit characterization as outside the heartland of
career offender cases. The court simply was not persuaded to
depart from the Guidelines. Nor is there anything in the record
to indicate that the court ever reached the question of whether a
sentencing court has the authority to depart downward in career
offender cases where the court finds that the defendant is not a
typical career offender.
Even assuming, however, that the statement seized upon
by the defendant was considered ambiguous, this alone would not
suffice to make the decision not to depart from the GSR either
appealable or appropriate for remand. See United States v.
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Romero, 32 F.3d 641, 654 (1st Cir. 1994) (noting that although
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the sentencing court's language was "not a model of clarity," it
was sufficiently clear from record that court understood its
ability to depart but made a factual and discretionary
determination that departure was not warranted). Difficulty
commonly arises where a sentencing court uses terse phrases that
it cannot or is without authority to depart from the GSR.
DeCosta, 37 F.3d at 8. While a sentencing court is not required
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to state its reasons for refusing to depart, failure to do so may
result in a perceived ambiguity. See id. Thus, we have
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suggested that a sentencing court state, where appropriate, "that
it has considered the mitigating factors urged but does not find
them sufficiently unusual to warrant a departure in the case at
hand." Id.8
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If a sentencing court neglects to use such language,
however, the sentencing decision is not necessarily ripe for
remand or review. Sentencing courts have had abundant
opportunity to become experienced with the Guidelines and
familiar with their authority to make discretionary decisions
regarding whether to depart. See DeCosta, 37 F.3d at 8 ("if a
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district court desired to depart but thought this course
forbidden by explicit guideline language, one would expect the
court to cast its refusal in these terms"); see also United
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States v. Rodr guez, 30 F.3d 1318, 1319 (10th Cir. 1994) ("[W]e
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no longer are willing to assume that a judge's ambiguous language
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8 Due to the recurrent nature of this problem, we once again
strongly suggest that sentencing courts use this language, or
language of identical import, to avoid ambiguities.
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means that the judge erroneously concluded that he or she lacked
authority to downward depart.").
There are at least two credible appellate approaches to
a ruling wherein the sentencing court has failed to state with
clarity its determination that a departure would be
impermissible, as a matter of law, on the grounds asserted. The
reviewing court may remand for a clear ruling, see, e.g., United
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States v. Mummert, 34 F.3d 201, 205 (3d Cir. 1994), or dismiss
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the appeal in reliance on a presumption that ambiguity alone
affords an insufficient basis for concluding that the sentencing
court misapprehended its departure authority. See Rodr guez, 30
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F.3d at 1319; cf. DeCosta, 37 F.3d at 8.
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Notwithstanding the problematic language in the
district court's ruling in the instant case, however, neither
option is warranted here. Rather, viewed in harmony with its
context, the departure reflects no misapprehension on the part of
the district court as to its departure power, but simply its
decision not to exercise that power in the present case.
II
II
CONCLUSION
CONCLUSION
Because we are without jurisdiction to review the
Because we are without jurisdiction to review the
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departure decision, the appeal is dismissed.
departure decision, the appeal is dismissed
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