USCA1 Opinion
October 26, 1995 [Not for Publication]
[Not for Publication]
United States Court of Appeals
United States Court of Appeals
For the First Circuit
For the First Circuit
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No. 94-2136
UNITED STATES,
Appellee,
v.
JOHN DEGRANDIS,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Joseph L. Tauro, U.S. District Judge]
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Before
Selya and Stahl, Circuit Judges,
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and Gorton*, District Judge.
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John C. Doherty for appellant.
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Jeanne M. Kempthorne, Assistant United States Attorney, with
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whom Donald K. Stern, United States Attorney, was on brief for
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the United States.
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*Of the District of Massachusetts, sitting by designation.
Per Curiam. In September of 1994, the district
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court sentenced John DeGrandis to a prison term of 151
months1 and three years of supervised release for a bank
robbery he committed in January 1992. DeGrandis now appeals
his sentence, challenging the district court's ruling that it
lacked authority under the Sentencing Guidelines to depart
downward from the prescribed sentencing range based on his
lack of youthful guidance.2
Under the Guidelines in effect at the time of
sentencing, see U.S.S.G. 1B1.11(a), "lack of guidance as a
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youth and similar circumstances indicating a disadvantaged
upbringing" were forbidden grounds for downward departure.
U.S.S.G. 5H1.12. (added by amendment, Nov. 1992).
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1. DeGrandis pled guilty without a plea agreement. Applying
the Guidelines in force at the time of sentencing, the
district court sentenced DeGrandis to the minimum of the
Guideline range based on an adjusted offense level of 29 and
a criminal history category of VI, pursuant to the career
offender provisions of U.S.S.G. 4B1.1. Pursuant to
U.S.S.G. 3E1.1(b), the court granted DeGrandis a three-
level reduction for acceptance of responsibility.
2. At his sentencing hearing, DeGrandis advanced his
childhood physical abuse as a factor supporting a departure
for lack of youthful guidance. Now, in his appellate brief,
he seems to suggest that childhood abuse is a separate ground
for departure, distinct from lack of youthful guidance. But
he does not make that clear, he makes no separate arguments,
and he points to no precedent treating childhood abuse
separately. We, therefore, consider childhood abuse as
subsumed in his lack of youthful guidance arguments, but we
would reach the same result if we considered it separately.
See United States v. Zannino, 895 F.2d 1, 17 (1st Cir.),
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cert. denied 494 U.S. 1082 (1980) (claims raised in
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conclusory fashion, unsupported by developed argumentation,
are deemed waived).
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DeGrandis argues, however, that 5H1.12 effected a
substantive change to the Guidelines subsequent to his
offense, and therefore its application to him was a violation
of the Ex Post Facto Clause of the Constitution. See United
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States v. Clark, 8 F.3d 839, 844-45 (D.C. Cir. 1993) (holding
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that the addition of 5H1.12 was a substantive change
implicating Ex Post Facto Clause); accord United States v.
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Johns, 5 F.3d 1267, 1272 (9th Cir. 1993); see also United
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States v. Prezioso, 989 F.2d 52, 53 (1st Cir. 1993) (holding
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that Guideline amendments that are "substantive" rather than
"clarifying" implicate Ex Post Facto Clause).
We need not reach DeGrandis' ex post facto claim.
Assuming but not deciding that (1) the district court's
decision not to depart downward was based on a belief that it
lacked legal authority to depart based on lack of youthful
guidance and (2) the district court, contrary to that belief,
did have such authority,3 we hold nonetheless that the
factual record does not support a downward departure for lack
of youthful guidance.
This circuit has not decided whether lack of
youthful guidance was a permissible ground for departure
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3. In order to assume that such authority existed, we must
further assume that lack of youthful guidance was a
permissible ground for departure at the time of the bank
robbery, and therefore the application of Guideline 5H1.12,
which was in effect at the time of sentencing but not at the
time of the offense, would violate the Ex Post Facto Clause.
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before 5H1.12 was added to the Guidelines in 1992; only the
Ninth and District of Columbia Circuits have approved such
departures. See United States v. Clark, 8 F.3d 839, 845
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(D.C. Cir. 1993); United States v. Anders, 956 F.2d 907, 913
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(9th Cir. 1992), cert. denied, 113 S. Ct. 1592 (1993); United
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States v. Floyd, 945 F.2d 1096, 1099 (9th Cir. 1991). Floyd
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and Anders were decided before the addition of Guideline
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5H1.12. The District of Columbia and Ninth Circuits have
upheld departures for lack of youthful guidance even after
5H1.12 became effective, applying the pre-1992 Guidelines
to avoid ex post facto problems. Clark, 8 F.3d at 845 (D.C.
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Cir. 1993); Johns, 5 F.3d at 1272 (9th Cir. 1993).
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The Ninth Circuit has approved departures for lack
of youthful guidance based on evidence of abandonment by
parents, lack of education, and imprisonment as a youth,
provided that there is a nexus between those factors and the
crimes for which the defendant is being sentenced. Anders,
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956 F.2d at 913; Floyd, 945 F.2d at 1099. The District of
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Columbia Circuit relied on Anders and Floyd in holding that a
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combination of childhood exposure to domestic violence and
lack of youthful guidance was a permissible ground for
departure. Clark, 8 F.3d at 845. Cf. United States v.
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Haynes, 985 F.2d 65, 68-69 (2d Cir. 1993) (rejecting lack of
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youthful guidance as grounds for departure and stating that
defendant failed in any event to make out its elements
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(abandonment by parents, lack of education, and imprisonment
as a minor), citing Floyd, 945 F.2d at 1099). Cognizant of
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these holdings from other circuits, we shall assume arguendo
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that lack of youthful guidance was, in January 1992, a
"special circumstance[] . . . of the `kind' that the
Guidelines, in principle, permit[ted] the sentencing court to
consider." United States v. Rivera, 994 F.2d 942, 951 (1st
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Cir. 1993).
In Rivera, this court explained the appropriate
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legal analysis for departures from the Guidelines. Id. at
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946-52. In assessing circumstances "where the Guidelines do
not expressly forbid, encourage, or discourage departures . .
., the district court will decide whether (and, if so, how
much to depart) by examining the `unusual' nature of these
circumstances." Id. at 949. Put differently, "the law tells
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the judge, considering departure, to ask basically, 'Does
this case fall within the "heartland" [of typical
circumstances] or is it an unusual case?'" Id. at 948.
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Rivera directs the appellate court to "review the district
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court's determination of `unusualness' with full awareness
of, and respect for, the trier's superior `feel' for the
case." Id. at 952. We apply this framework for review here.
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At the conclusion of the sentencing hearing, the
district judge stated that, if he had the authority to depart
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for lack of youthful guidance, he would have imposed a prison
sentence of 90 months instead of 151 months. The district
judge, however, made no specific factual findings to support
such a departure, other than to implicitly adopt the facts in
the presentence report and the mental health evaluation
report. The comments of the district judge are not entirely
clear. At one point in the sentencing hearing, he stated
that the mental health evaluation report did not support the
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requested departure for lack of youthful guidance; at a later
point, he stated that the report did support such departure.
Although the basis for the district court's decision is less
than certain, we have nonetheless examined the entire
sentencing record with the "respect for the trier's superior
`feel'" called for in Rivera. Id.
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Unfortunately for DeGrandis, the circumstances of
his youth are not unusual among criminal offenders, and thus
do not justify the departure he seeks. Although he had an
alcoholic father who was physically and verbally abusive,
that abuse was directed primarily toward DeGrandis' mother.
Nor was DeGrandis abandoned by his parents in his formative
years. After his parents separated during his fourteenth
year, he continued to live with his mother in South Boston,
his home at the time of his arrest. After the separation,
DeGrandis maintained some contact with his father, who also
lived in South Boston. DeGrandis did not have an unusual
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lack of education, having done well in school until he
dropped out in the ninth grade, apparently because of a
distaste for forced busing. While in state prison for
earlier offenses, he earned a General Equivalency Diploma and
took college classes. DeGrandis' entanglements with the
criminal justice system did not begin until he was nineteen
years old; he had no juvenile adjudications and therefore was
never imprisoned as a youth. Although the suicide of his
brother in 1988 was no doubt a traumatic event, DeGrandis was
23 years old at the time of the unfortunate event and it
therefore does not reflect on his youthful circumstances.
Contrary to DeGrandis' assertion, these facts do not warrant
a departure for lack of youthful guidance.4
Our conclusion is supported by the clinical
findings in the mental health evaluation report, which
concluded that the "impact on DeGrandis of being raised in a
dysfunctional family due to his parents' continuous fighting
and subsequent separation" was that DeGrandis "developed some
dysfunctional methods of dealing with stress," but that "he
could have decided to change aspects of his life and adopted
a different lifestyle." The Guidelines in effect at the time
of his offense and at the time of his sentencing provided
that mental and emotional conditions are not ordinarily
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4. Once again, we assume but do not decide that such a
departure was permissible in an appropriate case where the
offense occurred before U.S.S.G. 5H1.12 became effective.
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relevant factors for departure. U.S.S.G. 5H1.3. To the
extent that DeGrandis was mentally or emotionally impacted by
his difficult upbringing, we do not find Degrandis' condition
extraordinary. See Rivera, 994 F.2d at 948. It does appear
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from the record that drug addiction has been the most
powerful demon with which DeGrandis has battled. If there is
a nexus between his situation as a youth and his crimes, that
nexus is drug addiction. The need for money to support that
addiction is the most likely motivation for his crimes. Drug
abuse, however, was a forbidden grounds for departure under
the Guidelines in effect at the time of his offense and at
the time of his sentencing. U.S.S.G. 5H1.4.
Thus, we find that the circumstances of DeGrandis'
youth do not take him outside the "heartland" of the career
offender guideline. To the extent that the district judge
made a finding that DeGrandis' background was sufficiently
unusual to justify a departure for lack of youthful guidance,
that finding was erroneous under Rivera's "respectful"
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standard of review. 994 F.2d at 952. Remand for
resentencing would therefore be "pointless." See id. at 953
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("we should not (and would not) order a new proceeding were .
. . there no significant possibility that the facts and
circumstances would permit the district court lawfully to
order a departure").
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Accordingly, the sentence imposed on DeGrandis by
the district judge is affirmed.
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