United States v. Didier Alba John Gonzalez Marizol Vasquez, John Gonzalez, 933 F.2d 1117, 2d Cir. (1991)
United States v. Didier Alba John Gonzalez Marizol Vasquez, John Gonzalez, 933 F.2d 1117, 2d Cir. (1991)
United States v. Didier Alba John Gonzalez Marizol Vasquez, John Gonzalez, 933 F.2d 1117, 2d Cir. (1991)
2d 1117
On this appeal from the judgment entered July 17, 1990 in the District of
Connecticut, Peter C. Dorsey, Judge, the United States challenges each of the
four factors relied on by the sentencing court to depart downwardly from the
On September 21 when the informant advised Alba that he was at the Sheraton,
Alba said he would join him there with the money. DEA agents then observed
Alba driving away from his residence followed by another car driven by
defendant Gonzalez. The two cars stopped at a gas station and the agents
observed Gonzalez take a plastic bag from the trunk of his car and put it on the
front seat.
From there Alba and Gonzalez drove directly to the Sheraton's underground
parking area. Gonzalez remained in his vehicle, while Alba went to the hotel
lobby. A few minutes later Alba returned to the garage with the informant and
an undercover agent. He told Gonzalez to show them a box inside the bag,
which he stated contained $60,000. Alba and the informant then returned to the
lobby while the undercover agent and Gonzalez remained in the parking area.
While waiting there, Gonzalez and the agent had a conversation which was
recorded by the agent. In it Gonzalez discussed cocaine prices and other
After his arrest, Gonzalez received and waived his Miranda rights. According
to the government, the defendant then made a post-arrest statement in which he
admitted he had held the $60,000 overnight, received $3,000 for his part in the
deal, and been told by Alba to call the beeper numbers after they received the
cocaine to make arrangements for its delivery. None of this information was
contained in the presentence investigation report. A search of Gonzalez' home
uncovered a black powder .36 caliber revolver, three boxes of 30-30 rifle
cartridges, and $3,612 in cash.
PROCEEDINGS BELOW
7
Gonzalez was indicted on one count for conspiring to distribute and to possess
with the intent to distribute cocaine and on a second count for attempting to
commit the same crimes. Upon his entering into an agreement under which he
pled guilty to the conspiracy charge, the government dismissed the attempt
count. The presentence report attributed two kilograms of cocaine to the
defendant, resulting in an offense level of 28. It also recommended two
reductions, one of four levels for minimal participation and one of two levels
for acceptance of responsibility, which brought the offense level to 22. Since
defendant had no prior arrests, his criminal history category was I. These
combined under the Sentencing Table to produce a Guidelines range of 41-51
months. Although the amount of cocaine attributed to him was two kilograms,
defendant reserved the right to argue that he was not aware of the quantity of
narcotics involved.
At the April plea hearing Gonzalez testified that he did not know he was
involved in a drug transaction until the contents of the bag on the front seat of
his car were shown to the informant and undercover agent. He declared that the
money the police found in his home came from paychecks and a loan from a
family member to pay for his daughter's braces, and produced a notarized letter
confirming the loan. The Presentence Report--noting the emotional trauma
defendant's incarceration would have on Gonzalez' family and the fact that he
provided the primary financial support for his immediate family as well as his
disabled father and his grandmother--found that these were mitigating factors
Before discussing each of the grounds for downwardly departing, we must first
determine whether the prosecution is entitled to appellate review of them.
Gonzalez argues that the government is not so entitled because it failed to argue
in the trial court that these factors were adequately contemplated by the
Sentencing Commission in formulating the Guidelines. See United States v.
Garcia-Pillado, 898 F.2d 36, 39-40 (5th Cir.1990) (government held to have
waived right to contest sentence on appeal where, despite ample opportunity to
raise the matter before the district court, it failed to do so). Defendant also
asserts that the United States may not challenge that court's reliance on his
knowledge of the amount of cocaine involved in the transaction as a basis for
departing because it assented to the reservation of his right to make that
argument in the plea agreement letter. Neither of defendant's contentions has
merit.
10
11
Nor did the government waive its right to contest the sentencing court's reliance
on Gonzalez' lack of knowledge as to the specific amount of cocaine involved
in the transaction. The plea agreement reserved Gonzalez' right to argue lack of
knowledge, but it did not--either expressly or by implication--limit the
government's ability to contest the accuracy or appropriateness of that factor.
We proceed therefore to a discussion of the government's contentions.
II Grounds for Downward Departure
12
The first factor cited by the sentencing court is that the Sentencing Guidelines
do not adequately reflect Gonzalez' actual behavior. We review the question of
whether a particular factor is a permissible ground for departure de novo, see
United States v. Lara, 905 F.2d 599, 602 (2d Cir.1990), and the factual
determination that the factor at issue was present under a clearly erroneous
standard. See Jagmohan, 909 F.2d at 64.
14
may depart from the guidelines, even though the reason for departure is listed
elsewhere in the guidelines ..., if the court determines that, in light of unusual
circumstances, the guideline level attached to that factor is inadequate.").
15
The "unusual circumstance" found by the district court was that Gonzalez only
realized he was involved in a drug transaction "shortly before the incident" and
that his participation was "limited." The presentence report states that Gonzalez
maintained he was not aware that he was involved in a drug transaction until
shortly before the meeting in the Sheraton Garage took place and he had no
knowledge of the full details of the transaction. At the plea proceeding he
testified that he did not become aware that he was involved in a drug transaction
until the cash contents of the box in his car were displayed to the informant and
undercover agent. Additionally, the presentence report stated that Alba advised
the probation officer he deliberately did not disclose all the details of the
transaction to Gonzalez. The district judge was entitled to credit this proof and
his reliance on it was not clearly erroneous.
16
The sentencing court did not abuse its discretion when it downwardly departed
based in part on the extremely limited nature of Gonzalez' involvement in the
transaction. See United States v. Barone, 913 F.2d 46, 50 (2d Cir.1990); cf.,
United States v. McElroy, 910 F.2d 1016, 1027 (2d Cir.1990) (application of
Guidelines to established facts will not be overturned absent abuse of
discretion). The district court must be afforded reasonable flexibility in
imposing a sentence so long as its authority is exercised according to the
statutory standard. See United States v. Joyner, 924 F.2d 454, 459-60 (2d
Cir.1991). As noted, a departure based on a factor envisioned by the
Commission is permissible if the degree to which it was contemplated was
inadequate, 18 U.S.C. Sec. 3553(b), and the record sufficiently supports the
conclusion that Gonzalez' participation in the transaction was extremely
limited.
17
The next factor relied on was the impact incarceration of Gonzalez would have
on his family. Family ties and responsibilities are not "ordinarily relevant in
determining whether a sentence should be outside the guidelines," U.S.S.G.
Sec. 5H1.6; but if the circumstances related to those factors are extraordinary, a
sentencing court is not precluded as a matter of law from considering them in
making a downward departure. See United States v. Sharpsteen, 913 F.2d 59,
63 (2d Cir.1990).
19
As with Gonzalez' limited participation in the offense, here the record amply
supports the conclusion that his family circumstances were extraordinary.
Appellee has been married for 12 years. He, his wife and their two daughters,
aged four and 11, live with his disabled father--who depends on Gonzalez to
help him get in and out of his wheelchair--and his paternal grandmother. He
had long-standing employment at the time of the events which gave rise to this
case. He worked two jobs to maintain his family's economic well-being, and
was aptly described as a man who works hard to provide for his family. Clearly
his is a close-knit family whose stability depends on Gonzalez' continued
presence.
20
The sentencing court found that Gonzalez' incarceration in accordance with the
Guidelines might well result in the destruction of an otherwise strong family
unit and concluded that these circumstances were sufficiently extraordinary in
this case to support a downward departure. Under all these circumstances its
determination to depart downwardly relying on Gonzalez' family circumstances
is not an abuse of its discretion. See Barone, 913 F.2d at 50; see also United
States v. Big Crow, 898 F.2d 1326, 1331-32 (8th Cir.1990) (downward
departure based on employment history, community ties, and successful support
of family despite economic hardship of living on Indian Reservation, was not an
abuse of discretion); United States v. Handy, 752 F.Supp. 561 (E.D.N.Y.1990)
(downward departure based on impact longer period of incarceration would
have on children of convicted single mother); United States v. Gonzalez, 2
Fed.Sent.R. 81, 1989 WL 86021 (S.D.N.Y.1989) (extraordinary circumstances
meriting downward departure for mother of three where father already in prison
and mother's participation in the crime peripheral).
The district court also relied on its finding that Gonzalez' knowledge of the
The final factor relied on was the disparity between the sentence imposed on
co-defendant Marizol Vasquez and that which the Guidelines would have
imposed on Gonzalez, despite the trial court's belief that Gonzalez was no more
culpable than she was. We have recently held that disparity of sentences
between co-defendants may not properly serve as a reason for departure from
the Guidelines. See Joyner, 924 F.2d at 459-61. Reliance on this factor was
accordingly improper.
We have before us both proper and improper bases for downward departure.
Other circuits are not of one mind as to whether a reviewing court--when faced
with appropriate and inappropriate grounds for departure--may, considering
only the proper grounds, decide the issue, or whether it must remand for
resentencing. Several circuits have held that a remand is required, see, e.g.,
United States v. Singleton, 917 F.2d 411, 412 (9th Cir.1990); United States v.
Dean, 908 F.2d 1491, 1496 (10th Cir.1990); cf. United States v. Michael, 894
F.2d 1457, 1460 (5th Cir.1990), reasoning that an appellate court has "no way
to determine whether any portion of the sentence was based upon consideration
of the improper factors." United States v. Nuno-Para, 877 F.2d 1409, 1414 (9th
Cir.1989).
25
Other circuits, not following the remand route, weigh whether, reviewing only
the proper factors, the magnitude of the departure was justified, see United
States v. Franklin, 902 F.2d 501, 508-09 (7th Cir.), cert. denied, --- U.S. ----,
111 S.Ct. 274, 112 L.Ed.2d 229 (1990); United States v. Rodriguez, 882 F.2d
1059, 1068 (6th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 1144, 107
L.Ed.2d 1048 (1990); see also United States v. Hummer, 916 F.2d 186, 195 n.
8 (4th Cir.1990) (stating, in dicta, that the better approach is to affirm a
departure "so long as one or more factors exist that properly support departure
and the amount of departure is reasonable"), cert. denied, --- U.S. ----, 111 S.Ct.
1608, 113 L.Ed.2d 670 (1991), primarily because such approach is most
consistent with the "reasonableness" standard of departure under 18 U.S.C. Sec.
3742(e)(3). Hummer, 916 F.2d at 195 n. 8; see also Franklin, 902 F.2d at 50809.
26
Although not having had occasion to decide this issue squarely, we have used
both approaches. In Jagmohan, the sentencing court relied on three factors to
justify downwardly departing, only two of which were upheld on appeal. See
909 F.2d at 65. Considering only the appropriate factors, we sustained the
downward departure as reasonable. In Joyner, the district court relied on two
factors to depart downwardly. On appeal, we believed one of the factors was
impermissibly relied upon and remanded for resentencing with instructions that
the impermissible factor not be calculated. See 924 F.2d at 459-61.
27
28
We believe the case at hand falls into the latter category. During the sentencing
proceedings, Judge Dorsey expressed his "considerable doubt" as to whether or
not he should depart downward from the applicable Guidelines range. In light
of this doubt, we are not confident that he would have exercised his discretion
to depart to the same extent without relying on the factors we have determined
were improperly considered. When the panel believes the proposed departure is
unreasonable, considering only the appropriate factors, it may include
directions to the district court to that effect in its remand. See Joyner, 924 F.2d
at 462 (remand coupled with statement that departure was questionable). Here,
whether the sentence imposed was reasonable or not presents a close question
that we do not reach or decide. We must therefore reverse and remand in order
for the district judge to determine in the exercise of his discretion whether and
to what extent he should downwardly depart.
CONCLUSION
29
The judgment of the district court is accordingly reversed and remanded for
resentencing.