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. 97-1233
UNITED STATES OF AMERICA,
Appellant,
v.
ERIC GRAY SNYDER,
Defendant, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Edward F. Harrington, U.S. District Judge]
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Before
Selya, Circuit Judge,
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Campbell, Senior Circuit Judge,
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and Boudin, Circuit Judge.
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James F. Lang, Assistant United States Attorney, with whom
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Donald K. Stern, United States Attorney, was on brief, for the
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United States.
Victoria L. Nadel for appellee.
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Murray Kohn on brief for Massachusetts Association of
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Criminal Defense Lawyers, amicus curiae.
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February 12, 1998
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SELYA, Circuit Judge. In this single-issue sentencing
SELYA, Circuit Judge.
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appeal, the government implores us to set aside defendant-
appellee Eric Gray Snyder's sentence. The district court
predicated that sentence on a disparity between the sentence
mandated for the offense of conviction by the federal sentencing
guidelines and the sentence Snyder likely would have received had
state authorities prosecuted him. See United States v. Snyder,
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954 F. Supp. 19, 22 (D. Mass. 1997) (memorandum explicating
reasons for sentence). We thus confront a question of novel
impression in this circuit: Is federal/state sentencing
disparity a permissible basis for a downward departure? We
answer that question in the negative. Consequently, Snyder must
be resentenced.
I. BACKGROUND
I. BACKGROUND
We touch lightly upon the facts of the case as they are
only obliquely relevant to the legal problem that this appeal
presents. On January 10, 1995, a known drug user, John Hawk,
told a Boston police officer, William Doogan, that Snyder had
robbed him and his paramour at gunpoint and stolen a number of
Valium tablets. Hawk further stated that Snyder, driving a black
Honda and accompanied by Frank Diaferio (a reputed drug dealer
known to Doogan), was headed toward Roslindale. Doogan knew that
Diaferio resided at 17 Murray Hill Road in Roslindale and he
immediately arranged for police surveillance of that locus. When
Snyder and Diaferio arrived in the black Honda, the officers
found a loaded .32 caliber pistol in a locked briefcase in the
2
car's trunk. Doogan placed Snyder under arrest. During a search
at the station house, police officers recovered 26 Valium tablets
from Snyder's pants pocket.
Initially, Massachusetts authorities charged Snyder
under Mass. Gen. L. ch. 269, 10(a) (1990) with unlawfully
carrying a firearm, an offense punishable by a 2 -to-5-year
prison term. When a federal grand jury later returned an
indictment that charged Snyder with being a felon in possession
of a firearm in violation of 18 U.S.C. 922(g)(1) (1994),
Massachusetts dropped the state charge.
In due course, a federal trial jury found Snyder
guilty. The probation office thereafter prepared a presentence
investigation report (the PSI Report). The PSI Report indicated
that Snyder's extensive criminal history rendered him subject to
the sentencing enhancement provisions of the Armed Career
Criminal Act, 18 U.S.C. 924(e) (1994) (ACCA). Employing the
corresponding sentencing guideline, USSG 4B1.4 (Nov. 1995), the
PSI Report projected the guideline sentencing range (GSR) to be
262 to 327 months.
Judge Harrington conducted a three-day sentencing
proceeding. On October 9, 1996, Snyder's counsel and the
prosecutor sparred over Snyder's insistence that he was not
subject to the ACCA because certain of his prior convictions did
not qualify as predicate offenses thereunder. See 18 U.S.C.
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921(a)(20) (1994) (delineating various exclusions from the
taxonomy of eligible predicate offenses). In the course of that
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hearing, Judge Harrington expressed reservations about the
steepness of the projected sentencing range. Afterwards, he
issued a memorandum that noted his "grave concern" with the
"gross disparity" between the GSR and the punishment that Snyder
would have received had state authorities pursued and obtained a
conviction on the originally charged state offense. In that
memorandum, the judge made no bones about his disdain for "the
unfettered and unreviewable discretion of the United States
Attorney" to prosecute in federal court the "`local' offense of
carrying a firearm." He concluded by scheduling a further
hearing to address the issues "whether this disparity in
sentences and the de facto selective prosecution of the defendant
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raise any constitutional concerns and whether the combination of
the above two issues justify [sic] a downward departure under
USSG 5K2.0."
At the resumed hearing, held on December 12, 1996,
Judge Harrington reiterated his belief that sentencing Snyder to
a 21-year prison term would constitute a "gross violation of the
principles of justice." Engaging in what some might consider
wishful thinking, the judge then predicted the demise of the
sentencing guidelines:
I said yesterday to the U.S. Attorney's
Office, this type of de facto, selective
prosecution continues. And when there is a
disparity of over 20 years for the same
offense, . . . the guidelines are going to be
dismantled because the federal judiciary will
no longer, no longer put up with it. It's
going to be dismantled.
Judge Harrington convened the third, and final,
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sentencing session on January 14, 1997. He ruled that Snyder
fell within the ambit of the ACCA and that USSG 4B1.4 therefore
applied. He computed the GSR to be 235 to 293 months.1 Judge
Harrington then departed downward pursuant to USSG 5K2.0 and
sentenced Snyder to an incarcerative term of 180 months (the
mandatory minimum under the ACCA). He premised the departure
squarely on the ground that the federal/state sentencing
disparity created by interleaved federal and state criminal
jurisdiction over Snyder's conduct "is contrary to the very
objective of and theory upon which the Guidelines are grounded
and therefore takes this case out of the heartland and makes it
atypical." Snyder, 954 F. Supp. at 22.2 The sentencing court's
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rescript repeatedly condemns a system that cedes broad discretion
to prosecutors to determine who will be charged federally and,
thus, exposed to potentially harsher sentences when an
offender's conduct violates both federal and state criminal
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1The difference between the GSR projected in the PSI Report
and that actually used stemmed from Judge Harrington's finding
not contested on appeal that the government had not proven that
Snyder committed an armed robbery. This finding shrunk Snyder's
base offense level from 34 to 33, see USSG 4B1.4(b)(3)(B), and
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effected a commensurate decrease in the GSR.
2On appeal, Snyder attempts to divert our attention to
alternative rationales that arguably support the downward
departure. But Judge Harrington's decision makes no mention of
such factors. To the contrary, he expressly stated that "[t]o
this Court the issue raised is . . . one of disparity between the
sentences to be imposed." Snyder, 954 F. Supp. at 22. As our
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analysis must focus on the reasons given by the district court in
support of a departure, we take no view of Snyder's post hoc
justifications. See United States v. Dethlefs, 123 F.3d 39, 43
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(1st Cir. 1997); United States v. Jackson, 30 F.3d 198, 202 (1st
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Cir. 1994).
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codes. See, e.g., id. at 21 (disparaging "disparate sentencing
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treatment" brought about "by the exercise of absolute
prosecutorial discretion"); id. at 22 ("For where unbridled
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power, unchecked by judicial scrutiny, can by fiat determine that
a certain person from among many similarly situated shall serve
such a disparate sentence for the same offense, then the balance
of governmental powers has become distorted and the liberty of
every individual is held hostage to the potential tyranny of the
Executive Branch.").
II. STANDARD OF REVIEW
II. STANDARD OF REVIEW
We deal here only with the government's sentencing
appeal.3 We review a district court's decision to depart from
the guideline sentencing range for abuse of discretion. See Koon
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v. United States, 116 S. Ct. 2035, 2046-47 (1996). Our
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examination proceeds stepwise. First, we ascertain whether the
guidelines permit the sentencing court's stated ground for
departure. If so, we examine the record to discern the adequacy
of the factual support that undergirds the departure. Finally,
if the departure rests on satisfactory record support, we assess
the reasonableness of its magnitude in light of the factual
predicate. See United States v. Dethlefs, 123 F.3d 39, 43-44
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(1st Cir. 1997). Here, the government concedes that the
departure decision stands or falls on the first prong of the
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3Snyder appealed his conviction and his classification as an
armed career criminal. We heretofore affirmed his conviction.
See United States v. Snyder, No. 97-1187 (1st Cir. Jan. 29, 1998)
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(unpublished).
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test.
Whether the guidelines countenance a particular ground
for departure is a question of law. See Koon, 116 S. Ct. at
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2047. While this legal question technically falls within Koon's
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unitary abuse-of-discretion rubric, "[a] district court by
definition abuses its discretion when it makes an error of law."
Id. We determine the existence vel non of legal error without
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special deference to the sentencing court's views. See United
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States v. Brennick, ___ F.3d ___, ___ (1st Cir. 1998) [No. 96-
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1969, slip op. at 9].
III. ANALYSIS
III. ANALYSIS
We turn now to the validity of the district court's
stated ground for departure. The twin stanchions on which our
analytic framework rests are the generic departure guideline,
USSG 5K2.0 (a guideline that flows directly from the
congressional command embodied in 18 U.S.C. 3553(b) (1994)) and
the Court's opinion in Koon.
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Section 5K2.0 permits a sentencing court to deviate
from the range indicated by an otherwise applicable guideline
computation if it 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
considering whether an appropriate "aggravating or mitigating
circumstance" exists, the court first must ask "[w]hat features
of th[e] case, potentially, take it outside the Guidelines'
`heartland' and make of it a special, or unusual, case[.]" Koon,
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116 S. Ct. at 2045 (quoting United States v. Rivera, 994 F.2d
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942, 949 (1st Cir. 1993)). Judge Harrington believed that he had
identified such a feature. In his view, the disparity between
the sentence that Snyder would have received if convicted under
Massachusetts law and the sentence mandated by USSG 4B1.4 was a
mitigating circumstance that brought Snyder's case outside the
heartland of armed career criminal cases and justified a downward
departure. See Snyder, 954 F. Supp. at 22. It falls to us to
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test this conclusion.
In mounting this inquiry, we do not write on a pristine
page. Although the Sentencing Commission does not expressly
proscribe federal/state sentencing disparity departures, five
federal appellate courts have taken the measure of such
departures. All have held that federal/state sentencing
disparity is never a valid basis for a downward departure. See
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United States v. Searcy, ___ F.3d ___, ___ (11th Cir. 1998) [1998
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WL 10237, at *2]; United States v. Deitz, 991 F.2d 443, 447-48
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(8th Cir. 1993); United States v. Haynes, 985 F.2d 65, 69-70 (2d
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Cir. 1993); United States v. Sitton, 968 F.2d 947, 962 (9th Cir.
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1992); United States v. Dockery, 965 F.2d 1112, 1117-18 (D.C.
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Cir. 1992). This impressive array of authority resists ready
rejection.
Snyder harps on two facts: most of these decisions
predate Koon,4 and federal judges are less free under the Koon
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4The lone exception is Searcy, a case decided after this
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case was briefed and argued.
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regime to exorcise specific factors from the departure calculus.
See Koon, 116 S. Ct. at 2051; Dethlefs, 123 F.3d at 46. That
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rejoinder is true as far as it goes but it does not go very
far. We are, of course, respectful of the change in emphasis
that Koon betokens. Still, "[n]otwithstanding that most
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categorical interpretations are disfavored under the Koon Court's
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regime, some boundaries are essential if the guidelines are not
to be emptied of all meaning." Dethlefs, 123 F.3d at 47. So
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viewed, the pivotal question reduces to whether federal/state
disparity trenches upon such an essential boundary.
The letter of the sentencing guidelines is unhelpful in
this instance. Departures based on federal/state sentencing
disparity are not expressly permitted or forbidden in the
guidelines' text, nor are they explicitly encouraged or
discouraged. As a result, we must mull the "structure and theory
of both relevant individual guidelines and the Guidelines taken
as a whole," Koon, 116 S. Ct. at 2045 (quoting Rivera, 994 F.2d
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at 949), in our effort to ascertain whether this factor
conceivably may be of a kind, or present to a degree,
inadequately considered by the Commission (and thus capable of
removing a particular case from the "heartland" sculpted by a
given guideline), see United States v. Clase-Espinal, 115 F.3d
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1054, 1057 (1st Cir. 1997). Relevant federal statutes, the
guidelines themselves, their accompanying official commentary and
policy statements, and the case law inform our inquiry. See id.
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So too does our expectation that such categorical bans will be
9
relatively rare.
The Commission's enabling statute directs it to
"establish sentencing policies and practices for the Federal
criminal justice system that . . . avoid[] unwarranted sentencing
disparities among defendants with similar records who have been
found guilty of similar criminal conduct. . . ." 28 U.S.C.
991(b)(1)(B) (1994); see also USSG Ch.1, Pt.A, intro. comment. 3.
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The legislative history makes it crystal clear that Congress's
allusion to "unwarranted sentencing disparities" reflected a
concern with variations among federal courts across the nation,
without reference to their state counterparts. See United States
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v. Aguilar-Pena, 887 F.2d 347, 351-52 (1st Cir. 1989). In terms,
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then, the guidelines seek to promote uniform sentencing among
federal courts in respect to federal crimes. See Deitz, 991 F.2d
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at 447; Sitton, 968 F.2d at 962.
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The trial judge sought to elongate this principle,
speculating that "it would only be logical that Congress would
not favor disparity throughout the criminal justice system in an
era of increased Federal-State cooperation in the investigation
and prosecution of crime." Snyder, 954 F. Supp. at 22. With
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respect, we think that elongating the principle in this way would
destroy its structural integrity and, accordingly, that the trial
judge's surmise is utterly inconsistent with the guidelines'
theoretical underpinnings.
If the guidelines' goal is to promote uniformity among
federal courts when imposing sentences for federal crimes, then
10
departures aimed at alleviating federal/state sentencing
disparity are flatly incompatible with it. Endeavoring to make a
federal sentence more closely approximate that which a state
court might impose for similar criminal activity would recreate
the location-based sentencing swings that Congress sought to
minimize when it opted for a guideline paradigm.5 See Searcy,
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___ F.3d at ___ [1998 WL 10237, at *2]; Deitz, 991 F.2d at 447-
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48; see also Aguilar-Pena, 887 F.2d at 352 (warning that
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departures cannot be allowed to subvert Congress's "ardent desire
to dispense with inequalities based on localized sentencing
responses").
The short of it is that the guidelines did not sprout
in a vacuum. Congress and the Sentencing Commission erected the
present sentencing structure against the skyline of an extant
criminal justice system, see Haynes, 985 F.2d at 69; Dockery, 965
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F.2d at 1117; see also Stephen Breyer, The Federal Sentencing
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5One Commission member illustrated the swings that occurred
in the pre-guidelines era by recounting the following findings:
The region in which the defendant is
convicted is likely to change the length of
time served from approximately six months
more if one is sentenced in the South to
twelve months less if one is sentenced in
central California. . . . [B]lack [bank
robbery] defendants convicted . . . in the
South are likely to actually serve
approximately thirteen months longer than
similarly situated bank robbers convicted . .
. in other regions.
Hearings on Sentencing Guidelines Before the Subcomm. on Criminal
Justice of the House Comm. on the Judiciary, 100th Cong., 1st
Sess. 554, 676-77 (1987) (testimony of Commissioner Ilene H.
Nagel).
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Guidelines and the Key Compromises Upon Which They Rest, 17
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Hofstra L. Rev. 1 (1988), and that system includes overlapping
state and federal criminal jurisdiction. The fact that the
states impose different and varied sentences for criminal conduct
that may also transgress federal law is about as obvious as a
hippopotamus at a tea party. It is implausible to suppose that
the Commission overlooked this large reality and therefore failed
to account for it in formulating the guidelines.6 See Dethlefs,
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123 F.3d at 47; Clase-Espinal, 115 F.3d at 1057.
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We add, moreover, that disparity between federal and
state sentences in career offender cases is hardly serendipitous.
Congress crafted the ACCA on the central premise that armed
career criminals were being treated too gently by state courts
coddled, some might say and that these defendants ought to
receive much stiffer sentences. See United States v. Jackson, 30
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F.3d 199, 204 (1st Cir. 1994); see also 18 U.S.C. 924(e); H.R.
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Rep. No. 98-1073, at 5 (1984), reprinted in 1984 U.S.C.C.A.N.
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3661, 3665; USSG 4B1.4, comment. (backg'd.). For these
defendants, significant disparity between sentences at the
federal and state levels is the rule, not the exception. Hence,
if Snyder is entitled to a downward departure on this basis, then
virtually every defendant subject to the ACCA is similarly
entitled. See Dockery, 965 F.2d at 1118.
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6We think it unremarkable that the Commission has not
expressly forbidden federal/state disparity departures. Given
that the guidelines were never intended to foster parity between
federal and state defendants, Commission commentary on the
subject would be supererogatory.
12
We are equally unimpressed with the district court's
attempt to hang its finding of atypicality on an aversion to
federal prosecutors' discretionary power to target defendants
under federal law. See Snyder, 954 F. Supp. at 22. Different
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branches of government have different responsibilities, and the
power to determine when to prosecute and when to refrain is,
within broad limits, a prerogative of the Executive Branch.
Accordingly, it is a "bedrock principle of our system of criminal
justice" that a federal judge may not interfere with the
government's prosecutorial decisions solely to vindicate his
subjective view of the wisdom of a given enforcement strategy.
United States v. Stokes, 124 F.3d 39, 46 (1st Cir. 1997). It
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follows inexorably that the government's lawful selection of
Snyder for federal prosecution has no relevance to the sentencing
inquiry.7
For these reasons, we hold that federal/state
sentencing disparity is not a feature that can justify a
departure. Such departures would contradict hopelessly the
guidelines' structure and theory as well as impinge impermissibly
upon the Executive Branch's discretion to prosecute defendants
under federal law. See Dockery, 965 F.2d 1118.
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We add a coda. The continuing federalization of
criminal law increases the frequency with which federal/state
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7We find no record evidence of an unconstitutional exercise
of prosecutorial authority in this case. We note, moreover,
that Judge Harrington himself ruled in an unpublished order dated
December 27, 1997, that Snyder had failed to make out a prima
facie case of selective prosecution.
13
sentencing disparities occur, see generally Steven D. Clymer,
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Unequal Justice: The Federalization of Criminal Law, 70 S. Cal.
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L. Rev. 643 (1997), and we are not entirely unsympathetic to
Judge Harrington's concerns about this trend. Still, judicial
dissatisfaction with a particular aspect of the guidelines, "no
matter how steeped in real-world wisdom, cannot be enough to
trigger departures." Aguilar-Pena, 887 F.2d at 353; see also
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United States v. Muniz, 49 F.3d 36, 43 (1st Cir. 1995); United
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States v. Norflett, 922 F.2d 50, 54 (1st Cir. 1990). As long as
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federal and state sovereigns share jurisdiction over criminal
matters, prosecutors will be able to expose selected defendants
to elevated sentences. One can envision models designed to
eliminate or minimize this circumstance, see generally Sara Sun
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Beale, Too Many and Yet Too Few: New Principles to Define the
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Proper Limits for Federal Criminal Jurisdiction, 46 Hastings L.J.
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979 (1995), but these models reflect structure and theory quite
different from that embodied in the federal sentencing
guidelines. Thus, the case for them must be made in Congress,
not in the courts.
IV. CONCLUSION
IV. CONCLUSION
In sum, federal/state sentencing disparity is not "a
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). Hence, we
vacate Snyder's sentence and remand for resentencing.
14
We close by addressing one further point. In our
companion opinion, see supra note 3, we approved for the time
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being the district court's adherence to United States v.
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Estrella, 104 F.3d 3 (1st Cir. 1997), and rejected Snyder's
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contention that 18 U.S.C. 921(a)(20) prevents his prior
Massachusetts convictions from bringing him within the fold of
the ACCA. We noted, however, that the Supreme Court recently
granted certiorari to review this court's unpublished opinion in
Caron v. United States, Nos. 96-2338, 2339 (1st Cir. May 9,
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1997), cert. granted, 66 U.S.L.W. 3444 (U.S. Jan. 9, 1998) (No.
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97-6270), and prophesied that the Court's review of Caron will
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encompass the relevant aspects of Estrella. Consequently, if the
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defendant consents, the district court may choose to delay
resentencing pending the resolution of Caron. Elsewise, the
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district court should impose sentence consistent herewith,
applying Estrella, but reserve to Snyder the right to seek
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reconsideration should the Caron Court's decision materially
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affect the sentence imposed.
Vacated and remanded.
Vacated and remanded.
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