Filed: Nov. 15, 1994
Latest Update: Mar. 03, 2020
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 93-1067 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus PHILIP SCOTT ASHBURN, Defendant-Appellant. Appeal from the United States District Court for the Northern District of Texas November 15, 1994 Before POLITZ, Chief Judge, GOLDBERG, KING, GARWOOD, JOLLY, HIGGINBOTHAM, DAVIS, JONES, SMITH, DUHÉ, WIENER, BARKSDALE, E. GARZA, DeMOSS, BENAVIDES, STEWART, and PARKER, Circuit Judges. ROBERT M. PARKER, Circuit Judge: This case requi
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 93-1067 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus PHILIP SCOTT ASHBURN, Defendant-Appellant. Appeal from the United States District Court for the Northern District of Texas November 15, 1994 Before POLITZ, Chief Judge, GOLDBERG, KING, GARWOOD, JOLLY, HIGGINBOTHAM, DAVIS, JONES, SMITH, DUHÉ, WIENER, BARKSDALE, E. GARZA, DeMOSS, BENAVIDES, STEWART, and PARKER, Circuit Judges. ROBERT M. PARKER, Circuit Judge: This case requir..
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 93-1067
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PHILIP SCOTT ASHBURN,
Defendant-Appellant.
Appeal from the United States District Court for the
Northern District of Texas
November 15, 1994
Before POLITZ, Chief Judge, GOLDBERG, KING, GARWOOD, JOLLY,
HIGGINBOTHAM, DAVIS, JONES, SMITH, DUHÉ, WIENER, BARKSDALE,
E. GARZA, DeMOSS, BENAVIDES, STEWART, and PARKER, Circuit Judges.
ROBERT M. PARKER, Circuit Judge:
This case requires us to examine again the subject of
departures under Section 4A1.3 of the Federal Sentencing
Guidelines. Specifically, we must address whether conduct that
formed the basis for counts of an indictment dismissed pursuant
to a plea agreement may be considered in departing upward from
the Guidelines, and we must revisit the issue of the
justification required for such a departure under United States
v. Lambert, 984 F.2d 658 (5th Cir. 1993) (en banc).
Pursuant to a plea agreement, Philip Scott Ashburn pled
guilty to two counts of bank robbery in violation of 18 U.S.C. §
2113(a). The district court determined that the appropriate
range for Ashburn's offense under the Sentencing Guidelines was
63 to 78 months. However, the court also determined that this
range did not adequately reflect Ashburn's criminal history or
likelihood of recidivism and thus departed upward, sentencing
Ashburn to 180 months imprisonment.
Ashburn appealed his sentence. A panel of this court
affirmed in part, but held that remand was required because the
district court improperly considered the dismissed counts of the
indictment as a basis for the upward departure and had not
offered sufficient justification for a departure under Section
4A1.3.1 On reconsideration en banc, we conclude that the
departure was not improper, and we affirm the sentence imposed by
the district court.
I. BACKGROUND
On August 26, 1992, Ashburn, along with a co-defendant, was
indicted for a single-count of bank robbery in violation of 18
U.S.C. § 2113(a). A superseding indictment charged Ashburn with
three additional counts of bank robbery. Ashburn pled guilty to
Counts 3 and 4. In return for the guilty plea, the government
agreed to dismiss counts 1 and 2 and to forego prosecution of two
additional attempted robberies.
Count 3 charged Ashburn with a bank robbery which occurred
on July 3, 1992 in which $4,167 was stolen from the Bank of
1. United States v. Ashburn, 20 F.3d 1336 (5th Cir. 1994).
2
America in Fort Worth, Texas. Count 4 charged Ashburn with a
robbery in which approximately $32,000 in cash was stolen from
the American Bank of Hurst, Texas on July 31, 1992. The
dismissed counts charged Ashburn with robbing Arlington National
Bank in Arlington, Texas on December 27, 1991 and Sunbelt Savings
in Fort Worth, Texas on January 17, 1992.
The presentence investigation report (PSR) prepared prior to
Ashburn's sentencing revealed that in 1984 he had pled guilty to
armed bank robbery in Portland, Oregon. For this offense,
Ashburn served a six year sentence in the custody of the Attorney
General under the Federal Youth Corrections Act, formerly
codified at 18 U.S.C. § 5010(b). The PSR assessed three criminal
history points against Ashburn for this prior conviction,
producing a Criminal History Category of II.2 The defendant's
presentence report from the District of Oregon indicates that in
addition to the offense to which Ashburn pled guilty, he had
committed four other bank robberies in Oregon and one in Salt
Lake City, Utah.3
After appropriate enhancements and a three level reduction
for Acceptance of Responsibility, Ashburn's Total Offense Level
2. The Guidelines include only prior sentences, not prior
offenses or prior conduct, in calculating the criminal history
category. U.S.S.G. § 4A1.1.
3. The report also notes that "Ashburn was unquestionably
the ringleader in these bank robberies. He planned them,
recruited accomplices to assist him and was in charge of dividing
the proceeds afterwards." In addition, the report indicates that
a loaded revolver was used in three of the robberies.
3
was determined to be 25.4 With this offense level and a Criminal
History Category of II, the Guidelines provided for a sentencing
range of 63 to 78 months. The court, dissatisfied with this
range, notified the parties of its provisional intention to
depart upward from the guideline range.
To support the upward departure, the government called
Federal Bureau of Investigation (FBI) agent, Deborah Eckert, who
testified at the sentencing hearing about her investigation into
several robberies and attempted robberies for which Ashburn was
believed to be responsible. Agent Eckert described an interview
she conducted with Ashburn's co-defendant, April Jeanette
English. In that interview, English asserted that Ashburn
admitted to her that he had committed two earlier robberies in
December of 1991 and January of 1992. These two robberies had
been confirmed in detail and were charged in counts 1 and 2 of
Ashburn's indictment.
English also told Eckert that on April 17, 1992, Ashburn
called English from Key West, Florida and told her "I just did a
job." Eckert confirmed that a bank robbery was reported in Key
West, Florida on the specified day.5 Eckert also testified
regarding evidence of Ashburn's involvement in attempted
robberies of the Watauga State Bank in Watauga, Texas on July 24,
4. Under the Guidelines, bank robbery is a non-groupable
offense. U.S.S.G. § 3D1.2(d). Thus, the dismissed counts could
not be considered in the offense level calculation under the
relevant conduct provision as a part of the same course of
conduct or common scheme or plan. U.S.S.G. § 1B1.3(a)(2).
5. Ashburn was not charged with this robbery.
4
1992, and the Arlington National Bank in Arlington, Texas on July
17, 1992.6
The district court concluded that Criminal History Category
II did not adequately reflect the seriousness of Ashburn's past
conduct or the likelihood that he would commit additional crimes.
The judge therefore departed upward, sentencing Ashburn to serve
concurrent 180 month terms of imprisonment on Counts 3 and 4.
The court also sentenced Ashburn to a 3 year term of supervised
release, and a mandatory $100 assessment. On appeal, Ashburn
contends that the district court erroneously calculated his
offense level and criminal history category and made various
errors in its decision to depart upward.
A panel of this court found that Ashburn's objections to the
offense level and criminal history category were without merit.7
However, the panel held that the district court failed to
adequately explain its reasons for the upward departure.8 In
addition, the panel majority held that the counts dismissed
pursuant to the plea bargain should not have been considered in
effecting an upward departure.9 The dissent argued that nothing
in the plea agreement or the Guidelines precluded the district
court from using the dismissed counts to enhance the defendant's
6. As a part of the plea bargain, the government agreed
not to prosecute Ashburn for these two attempts.
7. 20 F.3d at 1338-43.
8. 20 F.3d at 1344-46.
9. 20 F.3d at 1346-48.
5
sentence.10
We ordered that this case be reheard en banc. We reject
Ashburn's appeal with regard to the offense level and criminal
history calculations for the reasons set out in the panel
opinion.11 However, we find it necessary to reconsider the
panel's holdings with respect to the district court's departure.
II. DISCUSSION
A district court may depart upward from the Sentencing
Guidelines if the court finds that an aggravating circumstance
exists that was not adequately taken into consideration by the
Sentencing Commission. 18 U.S.C. § 3553(b). Whenever a defendant
is sentenced, the district judge is required to "state in open
court the reasons for its imposition of the particular sentence."
18 U.S.C. § 3553(c). If the court departs upward from the
Guidelines, the court must also state "the specific reason for the
imposition of the sentence different from that described." Id.
"Our review of a sentence under the guidelines is 'confined to
determining whether a sentence was imposed in violation of law or
as a result of an incorrect application of the sentencing
guidelines.'" United States v. Shipley,
963 F.2d 56, 58 (5th Cir.)
(quoting United States v. Nevarez-Arreola,
885 F.2d 243, 245 (5th
Cir. 1989)) (internal quotations omitted), cert. denied, -- U.S.
10. 20 F.3d at 1350.
11. The panel opinion was vacated in its entirety when we
granted rehearing en banc. 5th Cir. R. 41.3. Parts II.A. and B.
of the panel opinion are reinstated by this decision.
6
--, 113 S. Ct. 348,
121 L. Ed. 2d 263 (1992); 18 U.S.C. § 3742(e).
We review the district court's decision to depart upward for abuse
of discretion. United States v. McKenzie,
991 F.2d 203, 204 (5th
Cir. 1993). We affirm a departure from the Guidelines "if the
district court offers 'acceptable reasons' for the departure and
the departure is 'reasonable.'" United States v. Lambert,
984 F.2d
658, 663 (5th Cir.1993) (en banc) (quoting United States v.
Velasquez-Mercado,
872 F.2d 632, 637 (5th Cir.1989)).
A. Consideration of Dismissed Counts in Upward Departure
Ashburn contends that the sentencing court improperly
considered the December 1991 and January 1992 robberies as a basis
for upward departure because this conduct formed the basis for the
counts of Ashburn's indictment which were dismissed pursuant to his
plea bargain. We find this argument unpersuasive.
The circuits are split on this question. The Third and Ninth
Circuits12 have held that the defendant does not get the benefit of
his plea bargain when the district court departs upward based on
the dismissed counts of the indictment. The Second and Tenth
Circuits,13 on the other hand, have held that prior criminal conduct
related to dismissed counts of an indictment may be used to justify
an upward departure. We are inclined to agree with the latter
12. United States v. Thomas, 961 F.2d 1110, 1121 (3d Cir.
1992); United States v. Castro-Cervantes,
927 F.2d 1079 (9th Cir.
1990).
13. United States v. Zamarripa, 905 F.2d 337 (10th Cir.
1990); United States v. Kim,
896 F.2d 678 (2d Cir. 1990).
7
view.
United States Sentencing Commission Guidelines Manual
(U.S.S.G.) § 4A1.3 authorizes a court to depart upward "[i]f
reliable information indicates that the criminal history category
does not adequately reflect the seriousness of the defendant's past
criminal conduct or the likelihood that the defendant will commit
other crimes . . . ." In deciding whether to depart because of the
defendant's criminal history, subsection (e) expressly authorizes
the court to consider "prior similar adult criminal conduct not
resulting in a criminal conviction." U.S.S.G. § 4A1.3 (e) (Policy
Statement).
Neither this guideline nor its commentary suggests that an
exception exists for prior similar criminal conduct that is the
subject of dismissed counts of an indictment.14 Section 1B1.4
provides that in determining "whether a departure from the
guidelines is warranted, the court may consider, without
limitation, any information concerning the background, character
and conduct of the defendant, unless otherwise prohibited by law."15
14. We do not interpret the word "prior" in subsection (e)
so narrowly as to exclude separate offenses that were part of the
series of crimes that resulted in the present arrest and
conviction. Contra United States v. Coe, 891 F.2d 405, 409-10
(2d Cir. 1989) ("where a defendant commits a series of similar
crimes, it would be elevating form over substance to regard the
early episodes in the series as "prior criminal history" simply
because the defendant pled guilty to the last in the series,
rather than the first.") Instead, we read "prior" to allow
consideration of all similar adult criminal conduct not resulting
in conviction that occurred prior to sentencing.
15. The commentary to this section provides, in part, that
[a] court is not precluded from considering information
8
We have found no statute, guidelines section, or decision of this
court that would preclude the district court's consideration of
dismissed counts of an indictment in departing upward.
The guidelines provisions on plea agreements are not to the
contrary. Section 6B1.2 provides that the court may accept a plea
agreement that includes the dismissal of charges or an agreement
not to pursue potential charges if the remaining charges
"adequately reflect the seriousness of the actual offense
behavior". U.S.S.G. § 6B1.2 (a) (Policy Statement). Ashburn
contends that acceptance of a plea agreement subject to this
standard is inconsistent with a subsequent decision to depart
upward from the applicable guideline range. We disagree.
Ashburn pled guilty to two counts of bank robbery. In all
respects, these counts were similar to the counts dismissed and the
attempted robberies not charged. The two count conviction
subjected the defendant to a maximum sentence of forty years
imprisonment. 18 U.S.C. § 2113(a). Under the circumstances, we
must agree with the district court's implicit finding that the two
count plea adequately reflected Ashburn's "actual offense
that the guidelines do not take into account. For
example, if the defendant committed two robberies, but
as part of a plea negotiation entered a guilty plea to
only one, the robbery that was not taken into account
by the guidelines would provide a reason for sentencing
at the top of the guideline range. In addition,
information that does not enter into the determination
of the applicable guideline sentencing range may be
considered in determining whether and to what extent to
depart from the guidelines.
Commentary to U.S.S.G § 1B1.4.
9
behavior".
Such a finding, however, does not guarantee that a defendant's
criminal history category will adequately reflect the defendant's
past criminal conduct or the likelihood that he will commit other
crimes. If it does not, the court is authorized to make a separate
determination on the need for departure in sentencing under section
4A1.3. We decline the defendant's invitation to hold that this
determination is precluded once a plea agreement is accepted under
section 6B1.2.
In addition, the plea agreement Ashburn accepted contained no
language that could have led him to believe that the dismissed
counts could not be used as the basis for an upward departure. The
plea agreement provided that the government would dismiss counts 1
and 2 of the indictment and would not prosecute Ashburn for the
attempted robberies occurring on July 17 and July 24, 1992. The
government has complied completely with those obligations.
Moreover, the plea agreement clearly stated that there was no
agreement as to what the sentence would be, that no one could
predict with certainty what guideline range would be applicable,
and that the defendant would not be allowed to withdraw his plea if
the court departed from the applicable guideline range. Thus, the
language of the plea agreement in no way implies a limitation on
the court's power to consider relevant information or to depart
from the guideline range. Indeed, the agreement clearly
contemplates the possibility that the court would depart upward
when all of the relevant information was considered. Therefore,
10
Ashburn could not reasonably have inferred from the plea agreement
that the district court was barred from considering the dismissed
counts in its departure determination.
B. Adequacy of Departure Justification
Under section 4A1.3, an upward departure "is warranted when
the Criminal History Category significantly under-represents the
seriousness of the defendant's criminal history or the likelihood
that the defendant will commit further crimes." U.S.S.G. § 4A1.3
(Policy Statement). In United States v. Lambert,16 we considered
the procedure a district court must follow when departing upward
under this provision. We held that the district court should
consider each intermediate criminal history category, and should
state for the record that it has done so. In addition, the court
should explain why the criminal history category as calculated
under the guidelines is inappropriate, and why the category it
chooses is appropriate. Id. at 662-63.
At the same time, we made it clear that
we do not . . . require the district court to go through
a ritualistic exercise in which it mechanically discusses
each criminal history category it rejects en route to the
category that it selects. Ordinarily the district
court's reasons for rejecting intermediate categories
will clearly be implicit, if not explicit, in the court's
explanation for its departure from the category
calculated under the guidelines and its explanation for
the category it has chosen as appropriate.
Id. at 663. Using this reasoning, we find that the district court
offered adequate justification for the sentence it imposed.
16. 984 F.2d 658 (5th Cir. 1993) (en banc).
11
At the sentencing hearing, the district judge indicated on the
record that his concern was caused by the fact that the defendant
committed a series of bank robberies in 1983 and then another
series of robberies beginning in 1991, less than two years after
his release from supervision following the 1984 conviction. Since
Ashburn's criminal history calculation was based solely on the
guilty plea to one count of robbery in 1984, the court felt that
the indicated guideline range did "not adequately reflect the
seriousness of this defendant's past criminal conduct and, perhaps
more importantly, the likelihood that he will commit other crimes."
The district judge determined that had the defendant
previously been convicted of the robbery offenses committed in
December of 1991, January of 1992, and April 1992, he would have
had nine additional criminal history points. Under the court's
calculations, Ashburn then would have a total of twelve criminal
history points and a corresponding Criminal History Category of V.
Using this criminal history category and Ashburn's offense level of
25, the judge determined a hypothetical guideline range of 100 to
125 months.
The court then cited the robberies committed in the early
1980s that did not result in conviction and concluded that "if they
were to be taken into account, the Criminal History Category VI
would not be sufficient to take into account his past criminal
conduct." The court also referred to the attempted robberies that
the government agreed not to prosecute. The court stated that
given the "likelihood the defendant will commit other crimes . . .
12
as well as the seriousness of his past criminal conduct" the court
would impose a "rather drastic upward departure from what the
guideline range contemplates." The judge then sentenced Ashburn to
a term of imprisonment of 180 months, found by indexing the
Criminal History Category of VI with an offense level of 29.
The justification offered by the district court clearly
indicates why the sentencing range recommended by the Guidelines
was inappropriate and why the court found the sentence imposed to
be appropriate. The district court did not expressly examine each
intervening criminal history category. However, we do not require
the district court to go through such a "ritualistic exercise"
where, as here, it is evident from the stated grounds for departure
why the bypassed criminal history categories were inadequate.
Lambert, 984 F.2d at 663.
In Lambert, we indicated that we could conceive of a "very
narrow class of cases" in which the district court's departure was
so great that we would require "explanation in careful detail" of
the district court's reasons for finding lesser adjustments in the
defendant's criminal history score inadequate. Id. Although the
sentence imposed in this case was more than twice the recommended
guideline range, it was not the sort of drastic departure we
referred to in Lambert. In fact, we note that the instant
departure is not significantly greater than departures previously
approved by this court. See United States v. McKenzie,
991 F.2d
203, 205 n.7 (5th Cir. 1993); Lambert,
984 F.2d 658 (affirming
departure sentence that was twice guideline range).
13
C. Reasonableness of the Departure
The final question we must address is whether the district
court's departure from the Sentencing Guidelines was reasonable in
light of the court's articulated justification. We hold that it
was. Although the ultimate sentence rose from a potential 78
months under the guidelines to 180 months, this result is not
unreasonable in light of the evidence of numerous instances of past
criminal conduct, which were not considered in the criminal history
calculation, and the overwhelming indication that the defendant was
inclined to return to a similar course of behavior.
III. CONCLUSION
Parts II.A. and B. of the panel opinion are REINSTATED, all
other parts of the panel opinion remain VACATED, and the sentence
imposed by the district court is, therefore, AFFIRMED.
GOLDBERG, Circuit Judge, with whom DeMOSS, Circuit Judge, joins,
dissenting:
This case calls for us to examine the range of information a
sentencing court may consider in upwardly departing from the
sentencing guidelines. The majority opinion takes a skyward view
of the information a sentencing court may consider; I would
prefer to keep the informational vistas of sentencing courts a
little closer to the horizon.
Thousands of pages and countless words have been written in
connection with the sentencing guidelines. The issues in this
case require that we add a few more pages to the existing wisdom
14
of this most dynamic area of law. In this case the sentencing
guidelines indicated a nadir sentence of 63 months, and the
sentencing court took some astronomical route to attain an
apogeic sentence of 180 months. Believing that the course taken
by the sentencing court was both uncharted and out of bounds, I
would reverse. So, let us put on the habiliments of an astronaut
as we journey into the world of the sentencing guidelines.
I
The controversy presented to this en banc court is whether a
sentencing court can consider dismissed charges in upwardly
departing from the sentencing guidelines, and the degree to which
a sentencing court must explain its actions when it decides to
depart from the guidelines. The defendant in this case, Philip
Scott Ashburn, was charged with four counts of armed bank
robbery. Pursuant to a plea bargain, Ashburn pleaded guilty to
two counts of armed bank robbery in return for a dismissal of the
remaining two counts and a promise not to prosecute other crimes
which he was suspected of committing. After the sentencing court
accepted the guilty plea, it decided that Ashburn's Criminal
History Category did not adequately reflect the seriousness of
his criminal conduct or his likelihood of recidivism. The court
noted that if Ashburn had been convicted of the crimes he had
been charged with, as well as other crimes he was suspected of
committing, he would have a Criminal History Category of VI. The
court then sentenced Ashburn as if he had been convicted of those
crimes that were either dismissed or never charged in the first
15
15
place. This resulted in a sentence of 180 months, or 230 percent
of the maximum guideline range for the crimes for which Ashburn
was actually convicted.
The sentence imposed by the sentencing court was not
permitted by the guidelines, and was lacking in the full and
adequate justification required by the guidelines for a
departure. Each issue will be addressed in turn.
II
The majority argues that dismissed charges may be taken into
account by a sentencing court in augmenting a defendant's
Criminal History Category. To support this conclusion, the
majority makes a three-step argument. First, it cites U.S.S.G. §
4A1.3 for the proposition that a sentencing court may upwardly
depart from the sentencing guidelines if it finds aggravating or
mitigating factors the sentencing commission did not consider in
formulating the guidelines. The majority points to this as proof
of the wide latitude sentencing courts have in evaluating data
which their sentencing decisions will be based upon. The
majority's argument also implies that, in developing the
guidelines, the sentencing commission did not consider the use of
dismissed charges to augment a defendant's Criminal History
Category. Second, the majority cites U.S.S.G. § 1B1.4 to support
the proposition that the sentencing court may consider any
information concerning the background, character and conduct of
the defendant when determining whether a departure is permitted,
unless the use of that information is prohibited by law. The
16
16
thrust of this argument is similar to that of the first argument,
i.e., sentencing courts may select from a wide range of
information in determining whether to depart from the guidelines.
Finally, the majority claims that considering dismissed charges
does not affect Ashburn's settled expectations with regard to his
plea bargain agreement. The majority asserts that the plea
bargain agreement made no guarantees about the length of the
sentence, and as such, the departure did not violate the letter
of the agreement. The majority's argument will now be reviewed
more thoroughly with the hope of showing that each strand of this
triad is weak and unsupportable.
A. Has The Sentencing Commission Considered Dismissed Charges
In Connection With The Criminal History Category?
The majority believes that § 4A1.3 creates an aperture for
considering dismissed charges in augmenting the Criminal History
Category because that section sanctions consideration of any
factor not contemplated by the sentencing commission. The issue
then turns on whether the sentencing commission contemplated
using dismissed charges in connection with departures in the
Criminal History Category. There are indications that the
sentencing commission did consider the issue, and did not intend
to permit the consideration of dismissed charges in augmenting
the Criminal History Category.
Control over the information a sentencing court may consider
in applying the guidelines is the sentencing commission's main
tool in imposing order in the criminal sentencing process. In
17
17
response to this need for limiting the information sentencing
courts may rely upon, some courts have adopted the doctrine of
negative implication in determining whether the sentencing
commission has considered a matter. In other words, if the
sentencing commission has adequately considered the relevance of
a factor to the sentencing process, then that factor, as well as
related circumstances, shall not be a proper basis for departure.
United States v. Mason, 966 F.2d 1488 (D.C. Cir. 1992) (the
guidelines' consideration of related factors precludes
defendant's mode of apprehension from being a suitable basis for
departure); see also, Robert H. Smith, Departure Under the
Federal Sentencing Guidelines: Should a Mitigating or
Aggravating Circumstance be Deemed "Adequately Considered"
Through "Negative Implication?",
36 Ariz. L. Rev. 265 (1994).
This doctrine is particularly important here because the
sentencing commission amended U.S.S.G. § 6B1.2 in 1992 to allow
sentencing courts to augment the defendant's Relevant Conduct
Category based on charges dismissed pursuant to a plea bargain.17
It would seem that in passing this amendment, the sentencing
commission considered the impact of charges dismissed pursuant to
a plea bargain, and did not find it necessary to extend
17 It is clear from that record that the sentencing court's
departure was based on the inadequacy of the Criminal History
Category (U.S.S.G. § 4A1.3(e)), and not the Relevant Conduct
Category (U.S.S.G. § 1B1.3(b)). Nor could such a departure have
been made, since the conviction in this case was for a non-
groupable offense; namely robbery (U.S.S.G. § 2B3.1). Non-
groupable offenses are specifically exempted from inclusion
within the Relevant Conduct Category.
18
18
consideration of this information to the Criminal History
Category. As such, the majority's reliance on U.S.S.G. § 4A1.3
is misplaced, as it appears that the sentencing commission must
have considered the role of dismissed charges in relation to the
Criminal History Category and, by omission, has prohibited their
combination.
B. Does Consideration Of Dismissed Charges In The Augmen-
tation Of The Criminal History Category Violate Any Law?
The majority finds further support for its argument in
U.S.S.G. § 1B1.4 and the commentary thereto. This section
provides that a court may consider "any information concerning
the background, character and conduct of the defendant, unless
otherwise prohibited by law." U.S.S.G. § 1B1.4. Furthermore,
the commentary to this section specifically states that, "[f]or
example, if [a] defendant commit[s] two robberies, but as part of
a plea negotiation entered a guilty plea to only one, the robbery
that was not taken into account by the guidelines would provide a
reason for sentencing at the top of the guideline range." The
majority believes that this section and its accompanying
commentary explicitly permit a sentencing court to consider
dismissed charges in augmenting a defendant's Criminal History
Category. In fact, the effect of U.S.S.G. § 1B1.4 and its
commentary lead me to a contrary conclusion.
Section 1B1.4 of the U.S.S.G. permits sentencing courts to
rely on any information not prohibited by law in departing from
the guidelines. The majority stated that it could find "no
19
19
statute, guidelines section, or decision of this court that would
preclude the district court's consideration of dismissed counts
of an indictment in departing upward." However, U.S.S.G. §
6B1.2(a), comment., which implies that sentencing courts should
only accept plea agreements that adequately reflect the
seriousness of the actual offense behavior, seems to prohibit the
consideration of counts dismissed pursuant to a plea agreement.
The language in this section closely tracks that of Fed.R.Crim.P.
11(e), which requires that, if a sentencing court has accepted a
plea bargain, then the sentence promulgated should embody the
disposition agreed to in the plea bargain agreement. Then Chief
Judge Breyer of the First Circuit relied on both U.S.S.G. § 6B1.2
and Fed.R.Crim.P. 11(e) in querying why a guilty plea should be
accepted if the agreement that brought the plea about did not
call for an adequate sentence. He stated:
The court seems to have departed from the guidelines so
that defendant's sentence would reflect the conduct
charged in the remaining eleven counts of the
indictment (counts that were dismissed in exchange for
his guilty plea). But if the court believed that
defendant's punishment should reflect that conduct, why
did it accept the plea bargain in the first place?
Unites States v. Plaza-Garcia, 914 F.2d 345, 348 (1st Cir. 1990);
Cf. United States v. Greener,
979 F.2d 517, 521 (7th Cir. 1992)
(upholding a district court's rejection of a plea bargain because
it did not adequately reflect the defendant's actual offense
conduct). The majority, however, is not persuaded by the
argument that U.S.S.G. § 6B1.2 and Fed.R.Crim.P. 11(e) prevent
the augmentation of the Criminal History Category based on
20
20
charges dismissed pursuant to a plea bargain. Instead, the
majority states that the sentencing court was permitted to accept
Ashburn's guilty plea, and still disavow the sentence agreed to
in the plea bargain agreement upon a determination that the
suggested sentence did not adequately reflect the seriousness of
Ashburn's criminal conduct or his likelihood of recidivism. The
majority's construction will eviscerate Rule 11(e) of the Federal
Rules of Criminal Procedure.
The majority opinion's reliance on the commentary
accompanying U.S.S.G. § 1B1.4 also calls for a response. That
commentary speaks to how a sentencing court would be justified in
sentencing a defendant at the upper limits of the guideline range
in reliance on charges dismissed pursuant to a plea bargain. The
majority quotes this language in footnote 15 of its opinion,
ostensibly to demonstrate that this commentary justifies the
result in this case. In fact, the precise language of this
commentary speaks only to a sentence at the upper limits of the
guideline range. For instance, if the hypothetical guideline
range were 63 to 78 months, then the fact that certain charges
were dismissed would justify the sentencing court to choose a
sentence closer to the ceiling than the floor of the appropriate
guideline range. The command of the commentary to U.S.S.G. §
1B1.4 is that sentencing courts have discretion within the
guideline range, but cannot substitute one range for another.
There is nothing in the commentary to U.S.S.G. § 1B1.4 to justify
a departure beyond the guideline range. On the contrary, this
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commentary's implication is that departures from the guideline
range based on dismissed charges are actually prohibited.
C. Does Considering Dismissed Charges Violate A Defendant's
Reasonable Expectation Of The Plea Bargaining
Agreement?
As a final measure in justifying the departure by the
sentencing court, the majority argues that the plea bargain did
not contain any language that would lead Ashburn to believe that
the dismissed counts would not be used against him in sentencing.
The reason the majority urges this view is that a defendant's
reasonable expectation from the plea bargaining agreement is
constitutionally protected, and that if the prosecution breaches
its agreement with the defendant, then the defendant may demand
specific performance of the agreement or withdraw his plea
altogether. Santobello v. New York, 404 U.S. 257, 263 (1971).
To avoid this difficulty the majority parses the language of the
plea bargain agreement to find that it "contained no language
that could have led him to believe that the dismissed counts
could not be used as a basis for an upward departure." In the
plea bargain agreement, the prosecution stated that it would not
prosecute the charges that were dismissed. Based on this
reading, the majority argues that Ashburn's expectations were met
since it was the sentencing court, and not the prosecution, that
employed the dismissed charges in making a departure.
Since the government promised in the plea bargain agreement
that the robberies that took place on July 17 and 24, 1992 would
not be pursued, the prosecution violated the plea bargain
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agreement by presenting Agent Deborah Lynn Eckert's testimony
concerning those bank robberies. However, the majority's
argument goes further than whether the prosecution crossed a line
forbidden by a plea bargain agreement in the testimony of one of
its witnesses. More significantly, the majority implies that
when a defendant accepts the dismissal of certain charges in
return for his guilty plea, he has not bargained for any
reduction in prison exposure. Addressing this argument requires
a determination of what it means to have a criminal charge
"dismissed," or what constructions of the word "dismissed" are
reasonable. To answer these questions one must first consider,
in broad strokes, what are the consequences of being charged with
a crime.
For most persons, being charged with a crime has many
consequences: shame, remorse, a reduction in life-chances, loss
of freedom, and other associated difficulties. As such, having a
criminal charge dismissed brings several benefits to the one
charged, not least of which is the avoidance of prison. However,
for a defendant facing a multiple count indictment, each
additional charge loses its stigmatic quality and simply amounts
to the possibility of a lengthier sentence. Once a defendant is
at the point were he is poised to admit his guilt, there is
little, if any, moral uplift in knowing that two of the four
counts that he has been charged with are being dropped. Clearly,
a defendant in these circumstances accepts a plea bargain that
dismisses certain charges for only one reason: to spend less
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time in the penitentiary by not having the dismissed charges
counted against him at sentencing.
The majority's argument concerning a defendant's
expectations of the consequences of dismissing certain charges in
a plea bargain is simply not plausible in light of a realistic
awareness and understanding of a defendant's perspective on the
effect of dismissing charges. Neither Ashburn, nor any other
defendant, would ever agree to a guilty plea if he did not
believe, quite reasonably, that the charges being dismissed would
not be counted against him at sentencing. The result the
majority urges results in the counterintuitive effects apparent
in the case of Ashburn's sentencing. For instance, the guideline
range for the counts Ashburn actually plead guilty to resulted in
an intermediate range of a little under six years. Had he
instead been tried and convicted of all four counts, the upper
limit of the guideline range he would have been exposed to would
have been less than nine years. See, U.S.S.G. § 3D1.1 et. seq.
(relating to the guideline's treatment of multiple count
offenses). However, the sentence actually imposed on Ashburn,
and affirmed by the majority today, is 180 months, or fifteen
years. The result, which the majority finds reasonable, is that
by entering a plea bargain agreement, Ashburn was given a
sentence that was almost twice as long as if he had gone to trial
and been convicted on all four counts.
Furthermore, upwardly departing based on the Criminal
History Category and dismissed counts is not necessary to achieve
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24
the objectives of the sentencing court in Ashburn's sentence.
The sentencing court departed from the guidelines because it
believed that Ashburn's Criminal History Category did not
accurately reflect the extent of his experience with committing
robberies. However, the proper way to address the inadequacy of
the sentence was not to factor in the dismissed charges.
Instead, the sentencing court should have exercised its powers
under Fed.R.Crim.P. 11(e) and rejected the plea bargain if it
felt that the agreement was too lenient. If the leniency of the
agreement did not become apparent until after the presentence
investigation, which very often occurs in the period between the
submission of a guilty plea and sentencing, then the sentencing
court should have offered Ashburn the opportunity to withdraw his
plea.
By rejecting the plea bargaining agreement, the sentencing
court could have forced further negotiation between Ashburn and
the prosecution, and the parties could possibly have come to an
agreement that more accurately reflected the realistic sentencing
possibilities Ashburn faced. If Ashburn was to be exposed to
additional prison time based on the "dismissed" charges, he
should have been so informed, and without this knowledge he could
not have knowingly waived his rights in pleading guilty. Trial
courts must ascertain that a defendant's guilty plea is made in a
knowing and informed manner, Boykin v. Alabama, 395 U.S. 238
(1969); North Carolina v. Alford,
400 U.S. 25 (1970), and with
the confusion the majority invites in its opinion by allowing
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25
dismissed charges to creep back in at the sentencing stage, such
a knowing and informed waiver is nearly impossible to achieve.
Apart from the patent unfairness of the majority's argument,
there are several negative consequences that will flow from it.
The most significant of these is the impact it will have on the
plea bargaining process. The plea bargain is an essential
component of our criminal justice system, by which all involved
benefit. In exchange for a guilty plea, the government promises
the defendant that it will either drop certain charges or down-
grade the offense charged. In return, the defendant pays for
whatever benefit he receives with his cooperation. By agreeing
to a plea bargain, the defendant waives several rights, most
prominent of which is the right to trial by jury. Plea bargains
also benefit society as a whole, since guilty pleas reduce the
number of cases on our overburdened court dockets. Our system of
criminal justice has come to depend on defendants foregoing their
right to a jury trial; if each criminal defendant, regardless of
the merits of his case, were to insist on his right to a jury
trial, our courts would not be able to function. Studies have
supported the efficacy and centrality of the plea bargaining
process to our criminal courts. See, Milton Heumann, Plea
Bargaining 24-35 (1977) (setting forth empirical evidence that
plea bargaining is less a response to case pressure than a
rational method for the resolution of criminal innocence or
guilt).
It is indisputable that the plea bargain benefits all
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26
involved, and is vital to the maintenance of order in our
criminal justice system. However, the majority's reasoning will
make plea bargaining a much more unstable and haphazard process.
Defendants and their counsel will be unable to properly evaluate
the consequences of a plea bargaining agreement, for they will
never know if the sentencing court will disregard the parties'
compact by considering charges that both the prosecution and
defense agreed would not be a factor at sentencing. Obviously,
when faced with such a decision, many defendants who would
otherwise admit their guilt and accept their sentence will find
it more attractive to test the prosecution's case at trial.
III
The majority's conclusion that the departure justifications
were adequate is also unsupportable. This court has previously
outlined the procedure for making such a determination in United
States v. Lambert, 984 F.2d 658 (5th Cir. 1993) (en banc). In
Lambert, this court held that a departure will be affirmed if the
sentencing court offers acceptable reasons for its departure and
if said departure is reasonable.
Id. at 663. In order to depart
under U.S.S.G. § 4A1.3, a sentencing court should first consider
increasing the defendant's Criminal History Category to the next
level, and if that is not satisfactory, then each subsequent
level should be considered.
Id. at 661. Also, Lambert called on
a sentencing court to state for the record why the criminal
history category provided by the guidelines was inappropriate,
and why the category it chooses is appropriate.
Id. at 663.
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27
However, recognizing the complexities inherent in setting a
sentence appropriate to every defendant, "we do not … require the
district court to go through a ritualistic exercise in which it
mechanically discusses each criminal history category it rejects
en route to the category it selects." Id.
A. Were The Sentencing Court's Departure Justifications
Adequate?
The sentencing guidelines are an ambitious attempt to impose
order on a process that many felt was too chaotic. Sentencing a
fellow human being is a demanding process that requires
evaluating deeds, demeanor and circumstances that elude
quantification. Nevertheless, the guidelines are an effort to
achieve that ideal for the sake of equity, and wisely, the
guidelines recognize that it is not possible to envision all of
the factors that go into a criminal sentence. As such, they
permit departures where these extraordinary and unforeseen
factors are present. However, in order to avoid making a sham of
the noble goal of the guidelines, some degree of articulation is
required for a departure to be considered reasonable. The
threshold of reasonableness required by the guidelines was not
met by the sentencing court in this case.
In justifying its decision to depart, the sentencing court
used an economy of speech that left much to the imagination. The
actual transcript of the rationale provided by the sentencing
court occupies approximately one and one-half, double-spaced,
typed pages. The sentencing court first announced that it was
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28
going to depart, and then stated that if the defendant had been
convicted of the two dismissed counts, his Criminal History
Category would be V instead of II. Then the sentencing court
stated that if the robberies the defendant committed "in the
early 1980s" were taken into account, Ashburn's Criminal History
Category would increase to level VI. The sentencing court also
made a cryptic allusion to several "attempted robberies" that it
was also taking into consideration. Since the sentencing court
felt that the defendant's current Criminal History Category did
not adequately reflect these aspects of Ashburn's background, it
decided that a "rather drastic upward departure" was in order.
It is true that Lambert does not require the sentencing
court to "go through a ritualistic exercise in which it
mechanically discusses each Criminal History Category it rejects
en route to the category that it selects." Id. at 663. Yet what
the sentencing court provided here barely amounts to a recitation
of the obvious. Striped of what little preamble the sentencing
court provided, the departure amounted to a mention of the
defendant's previous criminal activity and a conclusion that
these past acts demonstrate that it should upwardly depart from
the guidelines due to the "likelihood the defendant will commit
other crimes" and "the seriousness of his past criminal conduct."
These phrases are, almost verbatim, the ones found in the policy
statement to U.S.S.G. § 4A1.3: an upward departure "is warranted
when the Criminal History Category significantly under-represents
the seriousness of the defendant's criminal history or the
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29
likelihood that the defendant will commit further crimes,"
(emphasis provided). Essentially, the sentencing court repeated
the exact phrases found in the guidelines. I think that the
reasonableness requirement for departure justifications requires
more that a mere recital of the same words that authorize a
departure. If that is all that is required, then any explanation
for departures is a meaningless exercise, and a noble goal of the
sentencing guidelines is in jeopardy.
It is inherent in the exercise of reviewing the adequacy of
departure justifications that reasonable minds will differ.
However, if the explanations provided by the sentencing court
here are reasonable, then virtually nothing can be characterized
as unreasonable. The cursory justifications provided by the
sentencing court in this case are particularly problematic when
one considers the degree of the departure. As the majority
noted, Lambert anticipated a narrow class of cases where the
departure is so great as to require a detailed explanation of the
reasons for the departure. The majority then blithely states
that the departure here was not of the magnitude required to
invoke the additional Lambert scrutiny. However, Ashburn was
given a sentence that was practically triple that which he would
have been subjected to under the guidelines. Again, if the
departure here was not sufficiently marked to justify a careful
accounting of the reasons for the deviation, then I fail to see
what kind of departure does justify a Lambert elaboration.
B. Propriety Of The Grounds For The Departure
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30
Not only are the explanations provided by the sentencing
court insufficient to justify a departure of such magnitude, but
there are also difficulties with the explanations themselves.
For example, the sentencing court relied on the "robberies that
occurred back in the early 1980s" in raising Ashburn's already
augmented Criminal History Category from level V to level VI. It
is assumed that these "early 1980s" robberies the sentencing
court referred to were the crimes Ashburn was charged with in his
1984 conviction for armed bank robbery. Ultimately he was
convicted of one count of armed bank robbery, and the other
charges were dismissed. It is unclear from the sentencing
court's explanation whether it relied on the robbery Ashburn was
ultimately convicted on in 1984. If this were the case, that
conviction would have been counted twice, as Ashburn's
presentence report already gave him three criminal history points
for this 1984 conviction. Such double counting would be
improper, yet one cannot deduce whether the sentencing court
relied on the 1984 conviction due to the paucity of its
explanations.
There is one other difficulty with the propriety of the
reasons asserted by the sentencing court in justifying its upward
departure. The sentencing court relied, in part, on the two
charges that the plea bargain dismissed, and one other unindicted
robbery Ashburn allegedly committed. For each of these items,
the sentencing court added three criminal history points.
However, by assessing three criminal history points for each of
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31
these items, they are being treated as if they were full-fledged
convictions. The problem with this approach is that it fails to
distinguish between previous convictions (which also merit three
criminal history points) and other events ranging from dismissed
counts to conduct the prosecution may never have intended to be a
basis for an indictment. It is not clear that U.S.S.G. §
4A1.3(e) permits ascribing the same number of criminal history
points to past criminal conduct as to prior convictions. If this
were the case, then what would be the point in defining what a
prior conviction is and basing the Criminal History Category on
prior convictions.
IV
In closing, I would like to point out that some of the
issues in this case have caused a circuit split. The circuits
have split over whether dismissed charges may be used to augment
the Criminal History Category. The Second and Tenth Circuits
have held that dismissed charges may be so used. See, United
States v. Kim, 896 F.2d 678 (2nd Cir. 1990); United States v.
Zamarripa,
905 F.2d 337 (10th Cir. 1990). Conversely, the Third
and Ninth Circuits have held that such a use is not permitted.
See, United States v. Thomas,
961 F.2d 1110 (3rd Cir. 1992);
United States v. Castro-Cervantes,
927 F.2d 1079 (9th Cir. 1990).
Hard cases make bad law. All would admit that this case is hard
because the defendant is not a sympathetic character. However,
the nature of the defendant's acts seem to overshadow the
consideration of sections, commentaries and policy statements of
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32
the sentencing guidelines, and the circumvention of this body of
rules leads the majority to create bad law. For these reasons, I
respectfully dissent.
HAROLD R. DeMOSS, Jr., Circuit Judge, with whom, GOLDBERG,
Circuit Judge, joins, dissenting:
I join in all that Judge Goldberg has stated in his
comprehensive dissent, and add these additional words of dissent
because I feel so strongly that the district judge, and my
colleagues in the majority opinion, are in error in their
justification of the basis for, and quantum of, the upward
departure by the district judge in this case.
On page 8 of the government's supplemental en banc brief,
there is a verbatim quotation of the transcription of the
district judge's explanation at the sentencing hearing for why he
was departing upward. As I read that text, it seems clear that
the district judge relied on two sets of circumstances:
A. The robbery in December 1991 (count 1 of the indictment
which was dismissed), the robbery in January 1992
(count 2 of the indictment which was dismissed), and
the robbery in 1993 (un-indicted and the government
agreed not to indict), which would add three criminal
history points each "if he [Ashburn] had earlier been
convicted of these robberies" [emphasis added]; and
B. The robberies "that occurred back in the early 1980's"
which "if taken into account" would push Ashburn's
criminal history past category VI.
In approving the upward departure, the majority opinion relies
primarily on Section 4A1.3(e) which permits consideration of
"prior similar adult criminal conduct not resulting in a criminal
conviction" in making such an upward departure.
I have serious doubts as to the propriety of the district
judge's reliance on the three robberies described in sub-
paragraph "A" above. First of all, the robberies in 1991 and
1992 constituted counts 1 and 2 of the same indictment under
which Ashburn is being sentenced. The plea agreement expressly
provided that those two counts be dismissed, and to assume
convictions on those counts as the district judge did, violates
the express terms of the plea agreement. Secondly, if a
sentencing judge assumes conviction on dismissed counts, you no
longer have "conduct not resulting in a criminal conviction" as
defined in sub-part (e). Rather you have additional convictions
under a multi-count indictment which would necessitate processing
under Section 3D1.1 et seq. relating to multiple counts; and the
effects of those additional convictions would show up, not in the
criminal history table, but in the determination of "combined
offense level" (see example 1 on page 246 of the 1993 Guidelines
Manual). In this case, the net result of including counts 1 and
2 in the determination of combined offense level would be to move
the offense level up two steps from 25 to 27; with no change in
the criminal history category of II, the guideline range would be
78 to 97.
Finally, to assume conviction as to the dismissed counts and
then attribute three criminal history points for each assumed
conviction, just as you would for an actual prior conviction,
renders the point structure as defined by the guidelines for
determining criminal history utterly meaningless. In short, if
"prior similar adult conduct not resulting in a conviction" can
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34
be ascribed the same number of points as assigned to an actual
prior conviction, there is no distinction between the two.
Under Rule 11(e) of the Federal Rules of Criminal Procedure,
the district judge may accept or reject a plea agreement which
provides for dismissal of counts or charges. That Rule further
gives the judge the right to "defer his decision as to the
acceptance or rejection until there has been an opportunity to
consider the presentence report." It is apparent in this case
that after reading the presentence report, the district judge
felt the defendant was getting off too light. In my view, the
district judge's remedy then is to reject the plea agreement and
force the defendant to plead guilty to all counts of the
indictment or stand trial and risk conviction on all counts. In
either of those alternative events, the multiple count analysis
under section 3D1.1 et seq. would have been required to determine
the resulting sentence, and that analysis focuses on the combined
offense level and not criminal history. Instead, the district
judge decided to upwardly depart on the basis of "assumptions,"
which I find clearly erroneous, and to an extent that produces a
sentence which is double what would have been the guideline
sentence had the defendant in fact pleaded guilty to all four
counts.
These same criticisms are equally applicable to the district
judge's use of the "robberies back in the early 1980s" described
in Subparagraph B. above as justification for taking Ashburn's
criminal history "past Category VI." As in the instant
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35
prosecution, Ashburn pled guilty in 1984 to one count of a multi-
count indictment charging various events of bank robbery and the
remaining counts were dismissed. So, not only do we have
dismissed counts of the current indictment but also dismissed
counts of a prior indictment, which was the source of a prior
conviction, being used as the basis for determination of "prior
adult similar conduct." Given the proclivity of prosecutors to
file multi-count indictments and the frequency with which some of
those counts get dismissed pursuant to plea bargains, there is a
veritable "mother lode" of upward adjustments awaiting to be
mined out of Section 4A1.3(e) if the district judge's application
is correct. The majority seeks to bless its affirmance of the
district judge's interpretation in this case by stating that it
is joining the Tenth Circuit and the Second Circuit in holding
that prior criminal conduct related to dismiss counts of an
indictment may be used to justify an upward departure. That
blessing is misplaced in this case for nothing in Zamarripa
(Tenth Circuit) nor Kim (Second Circuit) dealt with dismissed
counts of prior indictments in the criminal history; and our
court therefore is making completely new law as to the "robberies
in the early 1980s" in this case. I respectfully suggest that
such new law is not contemplated by the guidelines and will turn
Section 4A1.3(e) into a Pandora's box, the opening of which we
will come to regret.
Furthermore, as indicated in Subparagraph B. above, the
district judge was even more cryptic in articulating his thought
36
process as to the "early 1980s robberies" than he was as to the
counts described in Subparagraph A. He simply said "If taken
into account", these 1980s robberies would push the criminal
history category past Category VI. He gave no indication of the
number of robberies he "took into account" nor did he indicate
the points per robbery he allocated as he did in describing the
other robberies in Subparagraph A. above. He made no attempt to
articulate any special circumstances about the "early 1980s
robberies" which persuaded him to make an adjustment. So, simply
by stating he took these early 1980 robberies into account, the
district judge departed further upward from the guideline range
of 100 - 125 months (O.L. 25 - C.H. V) to 151 - 188 months (O.L.
29 - C.H. VI) to reach the ultimate sentence of 180 months. The
majority opinion rationalizes its approval of the district
judge's articulation of his reasons by citing portions of Lambert
abjuring "ritualistic exercises" and by pointing out that on a
percentage basis the upward departure in this case is not that
different from the upward departure approved in Lambert. But in
the real terms of months and years to be served in prison, the
departure in this case from an initial guideline range of 63 - 78
months (5 - 6-1/2 years) to a final sentence of 180 months (15
years) is the very kind of departure we had in mind when we
stated in Lambert:
"In a very narrow class of cases, we can conceive that
the district court's departure will be so great that,
in order to survive our review, it will need to explain
in careful detail, why lesser adjustments in the
defendant's criminal history score would be
wjl\opin\93-1056d.opn
hrd 37
inadequate." Page 663.
I respectfully dissent from the conclusion that the district
judge satisfied Lambert.
wjl\opin\93-1056d.opn
hrd 38
