USCA1 Opinion
UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
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No. 96-1545
UNITED STATES OF AMERICA,
Appellee,
v.
WILLIAM A. TWITTY,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge]
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Before
Selya, Circuit Judge,
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Aldrich, Senior Circuit Judge,
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and Stahl, Circuit Judge.
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Evan Slavitt, by appointment of the Court, with whom Mary P.
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Murray and Hinckley, Allen & Snyder, were on brief for appellant.
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Michael J. Pelgro, Assistant United States Attorney, with whom
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Dina Michael Chaitowitz, Assistant United States Attorney, and Donald
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K. Stern, United States Attorney, were on brief for appellee.
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January 9, 1997
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ALDRICH, Senior Circuit Judge. William A. Twitty
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(hereinafter defendant), caught deep in the sale of illegal
firearms, appealed following the imposition of a cumulative
sentence of 97 months on three counts. His convictions
stood, but we held the court had erred in finding that his
participation in the conspiracy involved lasted long enough
to warrant application of the Sentencing Guidelines adopted
on November 1, 1991. United States v. Twitty, 72 F.3d 228,
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232-34 (1st Cir. 1995). The earlier Guidelines were less
severe. We accordingly remanded for resentencing on the
earlier version. On remand, the same judge, by adopting a
different calculation for Count I, the conspiracy count,
reached the same sentence, and thence the original 97 months
total. We can understand defendant's unhappiness with the
evaporation of his partial victory. However, we affirm.
Mere appearances do not prevail over established principles.
See United States v. Lombard, No. 96-1541, slip. op. at 12-13
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(1st Cir. Dec. 4, 1996).
I.
At the first sentencing, the court, believing that
the conspiracy shown extended beyond November 1, 1991, and
adhering to the rule that conspiracy should be grouped with
other counts involving its sole object, U.S.S.G. 3D1.2,
assigned thereto Base Offense Level 14 pursuant to U.S.S.G.
2K2.1(a)(6) of the November 1991 Guidelines. It then added
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four sets of enhancements that brought defendant to Level 28,
which with Criminal History Category II, produced a guideline
range of 87 to 108 months. The court chose 97 months, the
middle of the range, as the "total punishment." See U.S.S.G.
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5G1.2 (providing a mechanism for determining a "total
punishment" figure in cases with convictions on multiple
counts). On this basis, the court sentenced defendant to 60
months on the conspiracy count, the statutory maximum, and
then imposed a consecutive sentence of 37 months on Count II.
See United States v. Quinones, 26 F.3d 213, 215-17 (1st Cir.
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1994). A concurrent sentence of 37 months was imposed on a
third count, leaving the total sentence at 97 months.
At resentencing, the Base Offense Level dropped to
6. The court retained the previous enhancements, resulting
in an adjusted level of 20 which this time produced a 37 to
46 month guideline range, well under the 60 month statutory
maximum. Explaining that this range did not adequately
reflect the magnitude of defendant's conduct, the court
proceeded to depart upward by adding an additional 8 levels,
ending up again with an 87 to 108 month guideline range.
From this it reimposed the 60 months on the first count, and
then effected a further upward departure by reimposing the 37
month consecutive sentence on another count, bringing the
ultimate sentence again to 97 months. It is to be noted that
the reaffirmed sentences on Counts II and III were initially
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imposed on the basis of the November 1990 guidelines, and
were appropriate here, assuming the additional upward
departure with respect to Count I.
II.
We start with the general question. Defendant has
cited no authority for the proposition that there can be no
greater sentence after appeal, here in effect obtained by
upward departure. He might have cited North Carolina v.
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Pearce, where the Court held this to be improper after a
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second trial, if, as here, there were no new and subsequent
justification for so doing. 395 U.S. 711, 725-26 (1969).
Pearce created a presumption of vindictiveness, viz., a
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judge's irritation at being reversed. We have held, however,
that this presumption (and hence restriction) does not apply,
for example, when the two proceedings are handled by
different judges. United States v. Clark, 84 F.3d 506, 508
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(1st Cir.), cert. denied, ___ U.S. ___, 117 S. Ct. 272
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(1996). Under familiar principles, therefore, that
defendant's present silence shows he understands, he should
have noted and invoked the presumption, if not when the court
opened the hearing, at least when its action presented the
issue. He did not.
We have no doubt the court, as a court, had the
discretion to depart upward and reimpose the 97 month
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sentence. We have previously held that when resentencing
under a multi-count conviction,
[C]ommon sense dictates that the judge
should be free to review the efficacy of
what remains in light of the original
sentencing plan, and to reconstruct the
sentencing architecture upon remand
within applicable constitutional and
statutory limits, if that appears
necessary in order to ensure that the
punishment still fits the crime.
United States v. Dominguez, 951 F.2d 412, 416 (1st Cir. 1991)
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(quoting United States v. Pimienta-Redondo, 874 F.2d 9, 14
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(1st Cir. (1989) (en banc)). The only restrictions on the
court when making an upward departure1 are that it adequately
explain its decision and that the departure be reasonable.
United States v. Rosales, 19 F.3d 763, 770 (1st Cir. 1994);
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United States v. Rivera, 994 F.2d 942, 946-47 (1st Cir.
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1993). Here the court expressly based the upward departure
on the large number of guns and the endangerment of public
safety. After review of the record, we have no basis to find
this unreasonable.
Defendant also complains of "double-dipping" in
that the upward departure imposing an additional penalty for
endangering public safety2 was anticipated by and included
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1. Other than vindictiveness, presumed, North Carolina v.
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Pearce, 395 U.S. 711 (1969), or proven. See Wasman v. United
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States, 468 U.S. 559 (1984).
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2. We do not address the three level upward departure
reflecting the large number of guns involved as in his brief
defendant concedes that apart from the fact that the exact
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within the Guidelines and, in any event, taken into account
by the enhancements. We disagree. While it is true that
some of the enhancements reflected the fact that defendant's
behavior exceeded Guideline thresholds, the court determined,
based on the entirety of defendant's actions, i.e., putting
at least 225 serial number obliterated handguns onto the
streets, that the thresholds did not go far enough. It
concluded that this is an unusual case, placing defendant
outside the heartland of the Guidelines and allowing wide
discretion in upward departure. See Rivera, 994 F.2d at 949
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(1st Cir. 1993). We can agree. Moreover, in Quinones we
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noted that "appellate review of a district court's
determination that a case is unusual, and therefore warrants
departure, must take place 'with full awareness of, and
respect for, the trier's superior "feel" for the case.'" 26
F.3d at 218 (quoting United States v. Diaz-Villafane, 874
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F.2d 43, 50 (1st Cir. 1989)). We heed our admonition and
affirm defendant's sentence.
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sentence was reimposed, this departure could be deemed
reasonable.
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