United States v. Walter Dennis Thomas, Also Known as Dennis Thomas

KEARSE, Circuit Judge,

dissenting:

I respectfully dissent. Though I agree with the majority that the district court adequately explained why" it believed it should depart from the imprisonment range provided by the federal Sentencing Guidelines (“Guidelines”), I disagree with the majority’s conclusion that because the departure was above criminal history category (“CHC”) VI, the Guidelines’ highest CHC, the court had no obligation to explain the extent of its departure.

■ With respect to any departure the sentencing court is faced with two questions. The first is whether to depart at all. If that question is answered in the affirmative, the second question is what should be the extent of the departure. For multi-step CHC departures, this Court,, beginning with United States v. Cervantes, 878 F.2d 50, 55 (2d Cir.1989), and United States v. Coe, 891 F.2d 405, 412-13 (2d Cir.1989), which the majority discusses, and continuing in other cases, see, e.g., United States v. Stevens, 985 F.2d 1175, 1185 (2d Cir.1993); United States v. Jakobetz, 955 F.2d 786, 806 (2d Cir.), cert. denied, — U.S. -, 113 S.Ct. 104 , 121 L.Ed.2d 63 (1992); United States v. Sappe, 898 F.2d 878, 882 (2d Cir.1990), has required the sentencing court to state its reasons for bypassing intermediate steps and arriving at the final departure category. Though these cases did not involve departures above the highest CHC, they plainly stand for the principle that where the magnitude of the departure is substantial, the sentencing court should make clear on the record why it chose *969 that magnitude. Cf. United States v. Campbell, 967 F.2d 20, 26-27 (2d Cir.1992) (noting, even with respect to offense-level departures, as to which we do not require step-by-step explanations, that the thrust of our prior rulings is that the district court “must make clear on the record how the court determined the magnitude of the departure”).

Similarly, several other circuits that have considered the issue have ruled that the sentencing court must provide some reasoned justification of the extent of a given departure. See, e.g., United States v. Molina, 952 F.2d 514, 522 (D.C.Cir.1992) (“[W]e hold that the trial courts must supply some reasoned basis for the extent of post-category VI departures.”) (emphasis in original); United States v. Cash, 983 F.2d 558, 561-62 (4th Cir.1992) (when sentencing court deems CHC VI inadequate, it has three options: (1) decide not to depart; (2) extrapolate from the existing guidelines to create hypothetical CHCs above CHC VI; (3) analogize to career offender provisions), cert. denied, —— U.S. -, 113 S.Ct. 2380 , 124 L.Ed.2d 284 (1993); see also United States v. Cruz-Ventura, 979 F.2d 146, 150-51 (9th Cir.1992) (vacating sentence departing from CHC IV to beyond CHC VI despite fact that “degree of departure d[id] not appear excessive on its face and may be reasonable,” because “district court did not adequately state its reasons for the amount of the departure on the record” and thus may have relied on reasons that were inadequate); see generally United States v. Jackson, 921 F.2d 985, 991-93 (10th Cir.1990) (en banc).

The sentencing court in the present case-detailed Thomas’s prior record and noted that, in accordance with Guidelines procedure, some of his offenses had been excluded from consideration in calculating his CHC; the court concluded that in light of Thomas’s record as a whole, the Guidelines’ prescribed prison term of 12-18 months was not enough. Thus, the court appropriately answered the first departure question, i.e., whether any departure at all was warranted. Without further explanation, however, the court imposed a prison term of 36 months. It gave no reasons whatever as to why it believed that a departure doubling or trebling the Guidelines-prescribed prison term, rather than a smaller departure, if indeed it considered smaller departures, was appropriate.

By any standard this was a large departure. For example, in the Guidelines sentencing table, the increase in prescribed prison terms from one CHC to the next is generally about 10-20%. The sentence imposed on Thomas was 200-300% of the imprisonment range prescribed for him, plainly the equivalent of a multi-step increase. In each of the two 'offense-level categories of the table that encompass both a 12-18-month term and a 36-month term, the pertinent CHCs are four steps apart. (For offense-level 12, the pertinent CHCs are II and VI; for offense-level 13, they are I and V.) Thus, the magnitude of the departure here was the equivalent of at least four CHCs. In its brief on this appeal, the government rates the- departure here as the equivalent of five CHCs.

Further, though at the time Thomas was sentenced the Guidelines gave no instruction as to how to calculate a criminal history departure above CHC VI, later amendments confirm that a departure from 12-18 months to 36 months is a multi-step departure. In the current version of the Guidelines, the Sentencing Commission directs the sentencing court to structure a criminal history departure above CHC VI by moving incrementally down the CHC VI column to a higher offense level to determine the desired higher imprisonment range. See Guidelines § 4A1.3 (Policy Statement) (incorporating amendments through Nov. 1, 1992). Applying this newly prescribed methodology to Thomas’s case, in order to reach a range that includes 36 months the sentencing court would have to move down six steps.

Despite the magnitude of the departure, the majority never grapples with the question of why a departure of 200-300% was appropriate in this case. Each time the majority approaches that question, it answers with the statement that the district court adequately explained why it thought a departure was warranted. That answered the question of “whether.” It did not answer the question of “why to this extent”.

I do not mean to suggest that if the sentencing court here had given any indication *970 that it considered a lesser departure and stated why it believed such a departure would not suffice I could not find the present sentence permissible. However, since the ultimate goal of the Guidelines is to achieve similarity in sentences for similar offenders, and since our precedents require the court to state its reasons for the magnitude of the departure when it departs from one CHC to a nonadjacent CHC provided for by the Guidelines, it seems to me illogical to conclude that no such explanation is required when there is a large departure above the top CHC, into a realm with no boundaries.

For these reasons, I would vacate the judgment and remand to permit the district court to resentence Thomas and, with respect to any large departure above the imprisonment range provided by the Guidelines, explain its reasons for the magnitude of the departure.