United States v. Sally

Opinions of the United

1997 Decisions States Court of Appeals

for the Third Circuit

5-28-1997

United States v. Sally

Precedential or Non-Precedential:

Docket 96-1864

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Recommended Citation

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Filed May 28, 1997

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 96-1864

UNITED STATES OF AMERICA,

Appellee

v.

ALBERT SALLY,

a/k/a "PJ"

Albert Sally,

Appellant

ON APPEAL FROM THE

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

(D.C. Criminal No. 90-cr-00107-8)

District Judge: Hon. John P. Fullam

Argued: April 14, 1997

Before: SCIRICA, COWEN, and NYGAARD, Circuit Judges

(Opinion Filed May 28, 1997)

Peter F. Schenck (Argued)

Kristen R. Hayes

Suite 1250

Office of United States Attorney

615 Chestnut Street

Philadelphia, PA 19106

Counsel for the Appellee

Elizabeth K. Ainslie (Argued)

Ainslie & Bronson

1101 Market Street

2630 One Reading Center

Philadelphia, PA 19107

Counsel for the Appellant

OPINION OF THE COURT

NYGAARD, Circuit Judge:

Albert Sally appeals his sentence for convictions on drug

charges stemming from participation in a multi-member

crack conspiracy. Sally argues that the district court erred

by failing to depart downward from the guideline range

under Section 5H1.1 of the United States Sentencing

Guidelines because of his youth when he committed the

offense and evidence of his subsequent maturation. We find

no error in the district court's refusal to depart under

§ 5H1.1. However, in light of the recent decisions in Koon v.

United States, ___ U.S. ___, 116 S.Ct. 2035 (1996), and

United States v. Brock, 108 F.3d 31 (4th Cir. 1997), we will

vacate Sally's sentence and remand the cause to the district

court for it to determine whether Sally is entitled to a

downward departure based on his post-conviction

rehabilitation efforts.

I.

Albert Sally was a bagger and look-out for a crack

conspiracy from August 1988 through February 1989. He

was seventeen years old when he became involved in the

conspiracy and he turned eighteen on November 2, 1988,

some three and one-half months before the conspiracy

ended. As a result of his participation in the conspiracy,

Sally was indicted and convicted of drug charges as well as

charges related to the use of a gun in drug trafficking. He

was sentenced on December 17, 1991.

More than five years later, on June 24, 1996, Sally's

convictions for using a gun during drug trafficking were

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dismissed pursuant to a § 2255 motion. As a consequence,

his sentence was vacated and a resentencing hearing held

on September 24, 1996. At the hearing, Sally's counsel

requested that the district court consider a downward

departure based on a combination of two factors: (1) the

fact that Sally was seventeen years old during half the time

he participated in the conspiracy; and (2) the fact that since

he was first jailed, Sally had demonstrated increased

maturity by earning a GED and an additional nine college

credits. These factors, Sally's counsel argued, presented

sufficiently "unusual circumstances" to permit the court to

depart downward, notwithstanding the Guidelines' ordinary

prohibition against considering age as a factor in deciding

to depart from the Guidelines.

The district court rejected Sally's request for a downward

departure, reasoning as follows:

I expressly conclude in the circumstances of this case

I do not have the authority to depart downward . . ..

My present conclusion is given the Guideline

requirement [that] ordinarily age is not a factor for a

downward departure I don't think I can find in this

case it is sufficiently extraordinary to permit me to do

it. Therefore, I would conclude I lack the authority to

do it. If I had the authority to do it, I would seriously

consider a downward departure still further not

because I think the sentence originally imposed was

incorrect but as sort of a reward to the Defendant for

having made valiant efforts to turn his life around

during the time he has been in jail.

The district court then proceeded to sentence Sally to 168

months, which was the lowest sentence available in Sally's

revised Guidelines range. This timely appeal followed.

II.

On appeal, Sally presents two arguments. First, he

asserts that the district court incorrectly concluded that it

lacked the discretion to grant a downward departure under

§ 5H1.1 based on his age. Second, he contends that the

facts of his case are extraordinary enough to warrant using

his age as a factor to support a downward departure.

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Before oral argument, we asked the parties to address a

third issue: namely, whether post-conviction rehabilitation

is an appropriate basis for a downward departure.

We review the question of whether the district court had

the authority to depart downward based on the factor of

age under an abuse of discretion standard. See United

States v. Romualdi, 101 F.3d 971, 973 (3d Cir. 1996) ("[A]

district court by definition abuses its discretion when it

makes an error of law." ) (quoting Koon, 116 S.Ct. at 2047).

In contrast, we lack jurisdiction to review a refusal to

depart downward "when the district court, knowing it may

do so, nonetheless determines that departure is not

warranted." United States v. McQuilkin, 97 F.3d 723, 729

(3d Cir. 1996) (citations omitted).

III.

In § 5H1.1, the Sentencing Commission has foreclosed

departures based on age in all but the most extraordinary

cases. The section states in pertinent part:

Age (including youth) is not ordinarily relevant in

determining whether a sentence should be outside the

applicable guideline range. Age may be a reason to

impose a sentence below the applicable guideline range

when the defendant is elderly and infirm and where a

form of punishment such as home confinement might

be equally efficient as and less costly than

incarceration.

We have held previously that § 5H1.1 prohibits departures

based on age "except in extraordinary circumstances."

United States v. Shoupe, 929 F.2d 116, 120 (3d Cir. 1991);

accord United States v. Higgins, 967 F.2d 841, 845-46 (3d

Cir. 1992) ("The language of the guideline policy statements

indicates that only when any one of [the factors not

`ordinarily relevant'] can be characterized as extraordinary

does the district court have discretion to depart from the

guideline's sentencing range."). These precedents are

consistent with the approach established in the Guidelines

themselves:

An offender characteristic or other circumstance that is

not ordinarily relevant in determining whether a

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sentence should be outside the applicable guideline

range may be relevant to this determination if such

characteristic or circumstance is present to an unusual

degree and distinguishes the case from the "heartland"

cases covered by the guidelines in a way that is

important to the statutory purposes of sentencing.

U.S.S.G. § 5K2.0 (emphasis added). However, as the

Commentary to § 5K2.0 stresses, "In the absence of a

characteristic or circumstance that distinguishes a case as

sufficiently atypical to warrant a sentence different from

that called for under the guidelines, a sentence outside the

guideline range is not authorized." Moreover, it is

anticipated that cases where extraordinary circumstances

warrant a sentence outside the guideline range "will be

extremely rare." U.S.S.G. § 5K2.0, comment.

Sally concedes all this, but contends that the district

court did not know that it had the authority to depart

based on his age. In support of this assertion, Sally points

to a statement made by the district court at the

resentencing hearing: "If I had the authority to do it, I

would seriously consider a downward departure . . . ." This

statement, however, must be read in the context of the

statement that directly preceded it: "My present conclusion

is given the Guideline requirement [that] ordinarily age is

not a factor for a downward departure I don't think I can

find in this case it is sufficiently extraordinary to permit me

to [depart downward]." (Emphasis added). Indeed, read in

their entirety, the district court's comments demonstrate

that it clearly understood its authority to depart downward

under § 5H1.1 -- the court could depart downward only if

it believed Sally's age to be a "sufficiently extraordinary"

factor warranting departure under the facts of the case.

However, as the district court explicitly stated for the

record, it could not find that the facts of Sally's case were

so "sufficiently extraordinary" as to permit his age to be

used as a factor supporting a downward departure. Simply

stated, the district court applied the proper legal standards

under § 5H1.1 and hence, we find no error here.

Sally's second argument is equally unavailing. He

contends that if age is ever to be used as a factor

supporting a downward departure, then it should be used

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under the facts of this case. As noted earlier, however, we

do not have jurisdiction to review Sally's claim that the

unusual facts of his case warrant a downward departure

based on age. See McQuilkin, 97 F.3d at 729; accord United

States v. Evans, 49 F.3d 109, 111 (3d Cir. 1995) ("[A]

discretionary decision by the trial judge that a departure is

not justified is not reviewable."). Indeed, having satisfied

ourselves that the district court applied the proper legal

standards under § 5H1.1 and fully understood the scope of

its discretion to depart from the Guidelines on the basis of

Sally's age, we cannot hear a challenge to the merits of the

district court's discretionary decision not to depart from the

Guidelines. McQuilkin, 97 F.3d at 729. Accordingly, we will

not review the district court's valid exercise of its discretion

to deny Sally's request for a downward departure under

§ 5H1.1.

IV.

In addition to Sally's arguments alleging error in the

district court's application of § 5H1.1, we asked the parties

to address the question of whether post-conviction

rehabilitation is an appropriate basis for a downward

departure. At oral argument, both sides agreed that in light

of the decision in Brock, and the analysis of Koon therein,

reliance on post-offense rehabilitation efforts as a factor

warranting a downward departure was indeed proper.

Moreover, both parties also agreed that based on the

comments of the judge at the resentencing hearing, it was

clear that the district court believed that it lacked the

authority to depart downward based on Sally's post-

conviction rehabilitation efforts. We have not previously

considered whether post-conviction rehabilitation efforts

may serve as a basis for a downward departure from the

Guidelines. We reach that question today and conclude

that they may.

We begin our analysis with the decision in Brock. Brock

pleaded guilty to two counts of credit card fraud. The

district court, despite expressing a desire to depart

downward, refused the defendant's request for a downward

departure based upon his post-offense rehabilitation efforts

because it believed it lacked the authority to depart based

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on an earlier Fourth Circuit precedent. 108 F.3d at 32-33.

On appeal, the Brock court vacated the defendant's

sentence, holding that "extraordinary or exceptional efforts

at rehabilitation could possibly constitute a proper basis for

consideration of a downward departure." Id. at 32.

In reaching its decision, the Brock court relied on the

Supreme Court's opinion in Koon, which it read as support

for the conclusion that the factor of "post-offense

rehabilitation" had not been forbidden by the Sentencing

Commission as a basis for departure under the appropriate

circumstances. Id. at 33-34. Since post-offense

rehabilitation was not a forbidden factor, the Brock court

next sought to fit the factor into one of the other categories

identified in Koon: (1) the factor was encouraged by the

Commission as a basis for departure and was either (a)

taken into account in the applicable guideline itself or (b)

not taken into account in the guideline; (2) the factor was

discouraged by the Commission as a basis for departure; or

(3) the factor was unmentioned by the Commission. Id. at

34 (citing Koon, 116 S.Ct. at 2045). Ascertaining which

category the post-offense rehabilitation factor occupied was

important, the court noted, because "Koon instructs that

different inquiries are germane depending upon which of

these categories a factor falls into." Id. As the court

proceeded to explain the Koon framework:

If a factor is one upon which the Commission

encourages departure, and it is not taken into account

by the applicable guideline, a court may exercise its

discretion and depart on that basis. If an encouraged

factor is taken into account in the applicable guideline,

or if a factor is a discouraged one, then departure is

permissible only if the factor is present to an

exceptional degree or in some other way makes the

case different from the ordinary case where the factor

is present. Similarly, if a factor is neither encouraged

nor discouraged, but listed by the Commission as one

appropriately considered in applying an adjustment to

the guidelines, a court may depart only if the factor is

present to such an exceptional or extraordinary degree

that it removes the case from the heartland of

situations to which the guideline was fashioned to

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apply. Finally, if a factor is one that is unmentioned by

the guidelines, a court must, taking into consideration

the structure and theory of both relevant individual

guidelines and the guidelines taken as a whole,

determine whether the circumstances presented are

sufficient to remove the case from the heartland of the

applicable guideline.

Id. at 34-35 (internal citations and quotations omitted).

Adopting the reasoning of an earlier Fourth Circuit case,

the Brock court concluded that the Guidelines had already

taken into account the factor of post-offense rehabilitation

because the commentary to the Guidelines expressly

instructed that such efforts be considered in determining a

defendant's eligibility for an acceptance of responsibility

adjustment pursuant to § 3E1.1. Id. at 35; see also

U.S.S.G. § 3E1.1 Application Note 1(g). Therefore, the court

concluded, a departure based on post-offense rehabilitation

was warranted where the factor is "present to such an

exceptional degree that the situation cannot be considered

typical of those circumstances in which an acceptance of

responsibility adjustment is granted." 108 F.3d at 35. Thus,

the Brock court remanded the cause to the district court "to

set forth specific factual findings concerning what efforts on

Brock's part it considered exceptional enough to make the

case atypical of those situations in which the acceptance of

responsibility adjustment usually applies based on post-

offense rehabilitation." Id. at 35 n.2.

We agree with the Brock court's reasoning and find its

analysis and application of Koon persuasive. We hold that

post-offense rehabilitation efforts, including those which

occur post-conviction, may constitute a sufficient factor

warranting a downward departure provided that the efforts

are so exceptional as to remove the particular case from the

heartland in which the acceptance of responsibility

guideline was intended to apply. Indeed, we find no reason

to distinguish between post-offense and post-conviction

rehabilitation efforts in this context -- post-conviction

rehabilitation efforts are, by definition, post-offense

rehabilitation efforts and hence should be subject to at

least equivalent treatment under the Guidelines.

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We find additional support for our conclusion in our own

cases. We have already held that "a sentencing court may

depart downward when the circumstances of a case

demonstrate a degree of acceptance of responsibility that is

substantially in excess of that ordinarily present." United

States v. Lieberman, 971 F.2d 989, 996 (3d Cir. 1992).

Moreover, we recently reaffirmed this holding in Evans, 49

F.3d at 114, where we noted that "courts have recognized

that a defendant's ameliorative post-arrest conduct may

justify a departure even though section 3E1.1 rewards

acceptance of responsibility." (citing Lieberman, 971 F.2d at

996) (internal quotations omitted). Collectively, these

decisions clearly establish that when an offender

demonstrates an exceptional or extraordinary degree of

responsibility, a court may depart downward. In our view,

post-offense or post-conviction rehabilitation efforts are

factors that fall squarely within the scope of § 3E1.1 and

thus exceptional or extraordinary examples of rehabilitation

efforts may well warrant a downward departure.1

In this case, there is no doubt that the district court

believed that it lacked the legal authority to depart

downward based on Sally's post-conviction rehabilitation

efforts. Indeed, as the district judge explicitly stated at

Sally's resentencing hearing:

If I had the authority to do it, I would seriously

consider a downward departure still further not

because I think the sentence originally imposed was

incorrect but as sort of a reward to the Defendant for

having made valiant efforts to turn his life around

during the time he has been in jail.

_________________________________________________________________

1. In United States v. Pharr, 916 F.2d 129, 131 (3d Cir. 1990), we stated

that "[s]elf-improvement is not the type of conduct contemplated by the

acceptance of responsibility provisions of the guidelines." Since this

decision, however, §3E1.1 has been amended specifically to include

"post-offense rehabilitative efforts (e.g., counseling or drug treatment),"

as an appropriate consideration in determining whether a defendant

qualifies for an adjustment under the acceptance of responsibility

guideline. See U.S.S.G. §3E1.1 Application Note 1(g). Therefore, it is now

clear that post-offense and post-conviction rehabilitation efforts are

factors taken into account by the acceptance of responsibility provision

of the Guidelines.

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Given this clear expression of the district court's

willingness to consider a downward departure based on

Sally's post-conviction rehabilitation efforts, as well as the

government's concession at oral argument that the district

judge erroneously believed he lacked the authority to depart

downward based on this factor, we conclude that Sally's

sentence should be vacated and the cause remanded to the

district court for resentencing. On remand, the district

court must determine whether Sally's post-conviction

rehabilitation efforts are remarkable and indicate real,

positive behavorial change. In reaching this decision, the

district court should set forth specific findings concerning

what post-conviction rehabilitation efforts Sally has made

that demonstrate a degree of acceptance of responsibility

expressed by post-offense rehabilitation that is

substantially in excess of that ordinarily present.

Mindful of the Supreme Court's teaching that "[a] district

court's decision to depart from the Guidelines . . . will in

most cases be due substantial deference, for it embodies

the traditional exercise of discretion by a sentencing court,"

Koon, 116 S.Ct. at 2046, we are reluctant to announce any

general principles regarding what post-conviction

rehabilitation efforts may be considered so extraordinary or

exceptional as to warrant a downward departure. Indeed,

based on the sentencing court's "institutional advantage

over appellate courts in making these sorts of

determinations," id. at 2047, we think it advisable to leave

sentencing courts to make these determinations on a case-

by-case basis, relying on the particular facts and

circumstances of each case in weighing whether a

particular defendant's post-conviction rehabilitation efforts

warrant a downward departure. Nonetheless, we do believe

that, at a minimum, there must be evidence demonstrating

that a defendant has made concrete gains toward "turning

his life around" before a sentencing court may properly rely

on extraordinary post-conviction rehabilitation efforts as a

basis for a downward departure. Unlike the usual

adjustment for acceptance of responsibility where

defendants may all-too-often be tempted to feign remorse

for their crimes and be rewarded for it, we view the

opportunity for downward departures based on

extraordinary or exceptional post-conviction rehabilitation

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efforts as a chance for truly repentant defendants to earn

reductions in their sentences based on a demonstrated

commitment to repair and to rebuild their lives. As such,

we conclude that, as a baseline, downward departures

based on extraordinary or exceptional post-conviction

rehabilitation efforts are proper provided that the

sentencing court makes factual findings demonstrating that

the defendant has achieved real gains in rehabilitating

himself and changing his behavior.

V.

In summary, we conclude that the district court has the

authority to depart downward based on extraordinary or

exceptional post-conviction rehabilitation efforts.

Accordingly, we will vacate Sally's sentence and remand the

cause to the district court for it to determine whether

Sally's post-conviction rehabilitation efforts qualify him for

a downward departure.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

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