United States v. Sanders, 197 F.3d 568, 1st Cir. (1999)
United States v. Sanders, 197 F.3d 568, 1st Cir. (1999)
1999)
At the original sentencing in 1992, the district court (Judge Devine) sentenced
Sanders now appeals to challenge his new sentence. He does not dispute the
starting point for the departure or the decision to depart, constrained on the
latter issue by this court's decision on Sanders' earlier appeal, see Sanders, 982
F.2d at 8-10. Rather, Sanders' able counsel attacks the magnitude of the
departure (144 months), which practically doubled the guideline maximum
(168 months) and greatly exceeded the mandatory minimum sentence (180
months). He argues that this is unprecedented and unreasonable and,
alternatively, that it is inadequately explained.
States v. Brewster, 127 F.3d 22, 31-32 (1st Cir. 1997), cert. denied, 118 S. Ct.
1543 (1998). Where (as here) the raw facts are not in dispute, the end result is
usually a judgment call based on all of the pertinent circumstances and is
reviewed for abuse of discretion. See Koon v. United States, 518 U.S. 81, 99
(1996).
7
In this case, the circumstances that gave rise to the departure were that Sanders
sought to murder Harnum, nearly succeeded, and inflicted upon her an awful
and continuing injury. There is no doubt that this was a permissible basis for
departure. U.S.S.G. 5K2.2, relied on by the district court, provides at the
outset that "[i]f significant physical injury resulted, the court may increase the
sentence above the authorized guideline range." It continues, in pertinent part,
as follows:
The extent of the increase ordinarily should depend on the extent of the injury,
the degree to which it may prove permanent, and the extent to which the injury
was intended or knowingly risked. When the victim suffers a major, permanent
disability and when such injury was intentionally inflicted, a substantial
departure may be appropriate.
The two relevant elements in this explanation are intentionality and the extent
of harm, and the district court made findings as to both elements. As to intent,
the court rejected as preposterous Sanders' explanation that the back of the
head shooting was an accident resulting from a struggle. It found explicitly that
Sanders had intended to kill Harnum, although it described this as an attempt at
murder in the second degree, rather than in the first, because it apparently grew
out of a quarrel and premeditation was uncertain. Neither side disputes this
finding on appeal.
10
At the time of the original sentencing, Harnum was in a vegetative state and
was not expected to survive. By the second sentencing, Harnum had improved
somewhat but her condition remained tragic. The district court found that
Harnum "remains profoundly disabled in a way that is horribly damaging to her
ability to enjoy any semblance of a normal life, and [that] this disability is not
going to significantly change over time." The court described Harnum's
confinement to a wheelchair with splints on both legs and one wrist, her need to
wear a mouth guard to protect her teeth from constant grinding, and her need for
24-hour-a-day care including mealtime supervision to prevent her from choking
on her food.
11
As a result of her condition, Harnum--a single mother--could not care for her
two young children and was unable to have them live with her. The government
plausibly sought a separate departure for psychological injury to the children,
see U.S.S.G. 5K2.3, but the district court declined the invitation for lack of
specific evidence as to the children's condition. However, the court did
conclude that Harnum's inability to care for or live with her children was a
further indication of the injury inflicted upon her and thus properly considered
in measuring the extent of the departure under U.S.S.G. 5K2.2. The facts as to
Harnum's condition are not disputed on this appeal.
12
In its sentencing, the court discussed at some length the facts just recited as to
intention and harm. It explained its general approach as asking what addition
should be made--based on the attempted murder and its consequences for
Harnum--to the 15 year, statutorily prescribed sentence for someone who was
an ordinary felon in possession with a criminal record that had triggered the
minimum sentence; and the court noted the minimum sentence of 15 years that
Harnum could have received in state court in New Hampshire for attempted
murder. See N.H. Rev. Stat. Ann. c. 651:2 (II)(d), (II-c) (1996).2 On this basis,
the district court departed upward by 144 months.
13
14
In many cases, a judge does not explain precisely why he chose one number
rather than another for a departure; and such failures are often justified because
the underlying factors did not lend themselves to precise measurement. See
United States v. Rostoff, 53 F.3d 398, 408 (1st Cir. 1995); United States v.
Aymelek, 926 F.2d 64, 70 (1st Cir. 1991). But in this case, the district court did
use a rationale that lent itself to measurement, namely, what likely would have
happened in state court if (as usually happens) the attempted murder had been
independently prosecuted under state law. There is thus nothing to the claim
that the departure was not fully explained.
15
relation to the pre-departure figure (almost double if one starts with the
guideline maximum or about 80 percent if--perhaps more appropriately--one
begins with the statutory minimum). But there is no lack of precedent for
departures as large and larger,3 and the reason why it is so large is easily
explained.
16
Taken alone, being a felon in possession is a serious yet still modest crime; but
it is far more severely punished (by a fifteen year minimum) when coupled
with a history that includes three other crimes involving drugs or violence. Yet
many would think that this composite offense is itself less serious than the
further offense of attempted murder coupled with horrendous physical harm to
the victim. It is this second offense that is the effective measure of the
departure. Assuming the premise that it is at least as serious as the first, the
near doubling is easily explained. Cf. United States v. Lombard, 102 F.3d 1
(1st Cir. 1996), cert. denied, 520 U.S. 1266 (1997).
17
18
Yet all this proves is that there are competing yardsticks that might have been
used in determining a departure and that more than one of them might
reasonably be selected. Here, the second degree murder analogy can easily be
criticized as too kind to Sanders: it accounts for the deliberate attempt to murder
his victim--indeed, over-accounts in one sense since Harnum did not die--but
ignores entirely the peculiar brutality of the crime and the terrible permanent
harm inflicted upon Harnum and the awful consequences of that harm (e.g., the
loss of her children); and these elements could themselves warrant a very
substantial upward departure even if one treats the wicked intent as already
covered by the guideline sentence.
19
think that its conduct of the proceeding and careful delineation of issues and
choices were exemplary and that the result was well within its authority.
20
There remains one further issue raised not by defense counsel but by Sanders
himself in a pro se brief. Recall that the district court set aside under section
2255 Sanders' original conviction for using a firearm in connection with a drug
crime. While federal sentencing usually reflects a package approach, that
offense carried a statutorily mandated separate penalty of 60 months, which fell
with the overturning of the conviction. Judge Barbadoro was prepared to strike
the 60-month separate sentence but otherwise leave intact Judge Devine's
earlier sentence, which would have left Sanders with a 300-month sentence.
21
22
23
The Supreme Court has yet to consider the situation in which there is not a
subsequent trial and where the resentencing is by a different judge and is
occasioned by a successful collateral attack on one of the underlying
convictions,5 but we will assume dubitante that the presumption of
vindictiveness applies in such a case. If so, Sanders might have an argument
that, subject always to an adequate explanation justifying a larger sentence, his
second sentence could not exceed 360 months. But the second sentence did not
exceed 360 months.
24
Sanders' original sentence, like federal sentences in general, was a package. See
United States v. Rodriguez, 112 F.3d 26, 28-30 (1st Cir.), cert. denied, 522 U.S.
895 (1997). True, by statute the district court had to impose a 60-month
consecutive sentence for the use of a firearm in a drug crime, but that did not
make this component irrelevant to setting the rest of the sentence. In deciding
just how far to depart at the original sentencing, the district court considered
how far it wanted to go above the sentence that Sanders would otherwise serve,
which included the 60 months (as well as the pre-departure sentence for the
felon in possession offense).
25
In one case after another, this and other courts have permitted a new sentence to
be calculated after one element has been eliminated, without treating parts of
the prior sentence as a limit on the new one. 6 In our view, the Pearce limitation,
where it exists, only constrains the bottom line of the new sentence from
exceeding the bottom line of the old one. We add only that in this case new
information about the extent of the victim's conscious suffering was available
to the district court that would satisfy Pearce even if its constraint did apply.
26
Affirmed.
Notes:
1
As the district court pointed out, it was part of the bargain leading to Sanders'
guilty plea in federal court that the state would not separately prosecute him, so
there is no risk that Harnum will be punished again for the same shooting.
Defense counsel assumes that the offense level of 33 for second degree murder
would have been reduced to 30 for acceptance of responsibility, see U.S.S.G.
3E1.1(b); but while Sanders did plead guilty to the crime of being a felon in
possession, he flatly rejected responsibility for intentionally attempting to kill
his victim.
In Alabama v. Smith, 490 U.S. 794 (1989), the Supreme Court overruled a prior
decision which had applied Pearce's rule to a defendant who had initially pled
guilty and, after successfully appealing his conviction, was tried, convicted, and
given a higher sentence. Considering the matter afresh, Alabama v. Smith
found that a higher sentence after withdrawal of the guilty plea did not warrant
a presumption of vindictiveness. See id. at 801-03.
See United States v. Townsend, 178 F.3d 558, 566-69 (D.C. Cir. 1999); United
States v. Davis, 112 F.3d 118, 120-23 (3d Cir.), cert. denied, 522 U.S. 888
(1997); Rodriguez, 112 F.3d at 28-30; Woodhouse v. United States, 109 F.3d
347, 347-48 (7th Cir.), cert. denied, 522 U.S. 851 (1997).