LYNDA GAIL BREWER AND THERESA K. EVANS, PETITIONERS V. UNITED STATES OF AMERICA No. 89-7870 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Sixth Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. 1-24) is reported at 899 F.2d 503. JURISDICTION The judgment of the court of appeals was entered on March 29, 1990. The petition for a writ of certiorari was filed on June 26, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether the district court improperly departed downward from the applicable Sentencing Guidelines ranges in sentencing petitioners. STATEMENT Upon their guilty pleas in the United States District Court for the Middle District of Tennessee, petitioners were each convicted of bank embezzlement, in violation of 18 U.S.C. 656. Both petitioners were sentenced to three years' probation, with the first 90 days to be served under limited home detention. Both petitioners were also ordered to perform 200 hours of community service work during the first year of probation. On the government's appeal of the sentences, the court of appeals remanded for resentencing. 1. Petitioners were tellers of the Wayne County Bank in Waynesboro, Tennessee, a small community of less than 2,500 people. Over a 10-month period, petitioner Brewer embezzled $9,000 from the bank, and petitioner Evans embezzled $19,000. In an attempt to conceal their scheme, they periodically adjusted the bank vault balance sheets and covered for each other. An unannounced audit of the bank in August 1988, however, revealed that $28,000 was missing. Shortly thereafter, petitioners voluntarily admitted to the bank president that they had taken the money, and they paid restitution to the bank. Pet. App. 2. Both petitioners subsequently pleaded guilty. Their plea agreements specified that, if the district court deemed incarceration appropriate, each would be "sentenced to a term which is the lowest range of the Federal Sentencing Guidelines which term shall in no event exceed six (6) months." 2. On February 28, 1989, petitioners were sentenced pursuant to the Sentencing Reform Act of 1984, 18 U.S.C. 3551 et seq. and 28 U.S.C. 991-998. The district court found that the Sentencing Guidelines range for each petitioner was 6-12 months' imprisonment, based on a total offense level of 10 and a criminal history category of I. /1/ Under Guidelines Section 5C2.1(c) and the terms of the plea agreements, the district court had three sentencing options for each petitioner: (1) six months' imprisonment; (2) three months' imprisonment and three months in a halfway house, with a period of supervised release; or (3) six months in a halfway house. Pet. App. 3. The district court departed downward from the Guidelines ranges for each petitioner. It sentenced both petitioners to three years' probation, with the first 90 days to be served under limited home detention, and it ordered both of them to perform 200 hours of community service work during the first year of probation. The court justified its departures based on several factors: (1) the degree of community support for petitioners; (2) the degree of remorse shown by petitioners; (3) the promptness with which petitioners made restitution; (4) petitioners' histories and continued community involvement; (5) the aberrant nature of petitioners' criminal activity; (6) the fact that both petitioners had young children and were needed at home; (7) the bank president's recommendation of clemency; and (8) the court's belief that incarceration would serve no useful purpose. Pet. App. 3-4. 3. The court of appeals remanded for resentencing. Pet. App. 1-16. The majority concluded that the factors relied upon by the district court to justify its departures were adequately taken into consideration by the Sentencing Commission in formulating the Guidelines. Because none of the factors were present to an unusual or extraordinary degree, the majority held, those factors did not justify a departure from the Guidelines range under 18 U.S.C. 3553(b). Pet. App. 9-14. Judge Merritt dissented. Pet. App. 17-24. In his view, the district court's downward departures were proper because the Sentencing Guidelines did not take into account the full panoply of facts traditionally considered in mitigation at sentencing. Id. at 17-20. Relying on 28 U.S.C. 994(j), Judge Merritt concluded that petitioners' first offenses were not sufficiently serious to justify imprisonment. Pet. App. 22-23. In addition, he criticized the majority for failing to give due deference to the district court's application of the Guidelines to the facts under 18 U.S.C. 3742(e). Pet. App. 20-22. Finally, Judge Merritt complained that the majority's decision would make judicial administration in Guidelines cases more onerous at the trial and appellate levels. Id. at 23-24. ARGUMENT 1. Petitioners first contend that the court of appeals erroneously concluded that the factors on which the district court relied did not justify the downward departures from the Guidelines range. Pet. 18-21. Under 18 U.S.C. 3553(a)(4) and (b), a district court must impose a sentence of the kind and within the range recommended by the Sentencing Commission in the applicable Sentencing Guidelines unless the court finds an aggravating or mitigating circumstance of a kind or to a degree not adequately considered by the Commission that should result in a different sentence. Moreover, in determining whether a circumstance was adequately taken into consideration, the district court may consider only the Sentencing Guidelines, policy statements, and official commentary of the Sentencing Commission. 18 U.S.C. 3553(b). When the Sentencing Guidelines take into consideration an aggravating or mitigating factor, the Sentencing Commission has explained that a departure is warranted only if that factor is present in the case to an unusual degree. Guidelines Section 5K2.0 (Policy Statement). /2/ Contrary to petitioners' contention, the court of appeals properly concluded that the factors relied upon by the district court to justify its departures in this case had been adequately taken into account in the Sentencing Guidelines. The Sentencing Guidelines specifically state that a defendant's sex and socioeconomic status "are not relevant in the determination of a sentence." Guidelines Section 5H1.10 (Policy Statement). They also provide that a defendant's age, education and vocational skills, previous employment record, family ties and responsibilities, and community ties are "not ordinarily relevant in determining whether a sentence should be outside the guidelines." Guidelines Sections 5H1.1, 5H1.2, 5H1.5, 5H1.6 (Policy Statements). Because none of those factors was present to an unusual degree in this case, the court of appeals concluded, Pet. App. 9-11, they could not serve to justify the district court's downward departures from the Guidelines range. See, e.g., United States v. Pozzy, 902 F.2d 133, 139 (1st Cir. 1990); United States v. Carey, 895 F.2d 318, 324-326 (7th Cir. 1990); United States v. Daly, 883 F.2d 313, 319 (4th Cir.), cert. denied, 110 S. Ct. 2622 (1989). /3/ The court of appeals likewise properly concluded that the other factors relied upon by the district court had been adequately taken into account in the Sentencing Guidelines. As the court of appeals explained, Pet. App. 11-12, petitioners' degree of remorse and prompt payment of restitution were taken into consideration by giving each of them a two-level reduction in the offense level for acceptance of responsibility under Guidelines Section 3E1.1(a). See United States v. Carey, 895 F.2d at 323. Cf. United States v. Bolden, 889 F.2d 1336, 1340-1341 (4th Cir. 1989). The court of appeals also correctly noted, Pet. App. 12, that petitioners' prior good records were taken into account by their placement in the lowest criminal history category. United States v. Borrayo, 898 F.2d 91, 94 (9th Cir. 1990); United States v. Williams, 891 F.2d 962, 965-966 (1st Cir. 1989). See United States v. Carey, 895 F.2d at 324-325. Finally, as the court of appeals observed, Pet. App. 12-13, "(i)t is simply not the sentencing judge's prerogative if he disagrees with the guideline concepts to determine whether incarceration would serve a useful purpose when the guidelines expressly provide for a minimum jail term." /4/ 2. Petitioners also claim that the court of appeals applied an improper standard of review in assessing the district court's decision to depart from the Guidelines range. Pet. 21-23. The statute establishing appellate review of sentences provides that the court of appeals "shall give due deference to the district court's application of the guidelines to the facts." 18 U.S.C. 3742(e). /5/ The amount of deference due a district court depends on the nature of the sentencing determination being reviewed. See United States v. Daughtrey, 874 F.2d 213, 217-218 (4th Cir. 1989) (Wilkins, J.). The standard of review applied by the court of appeals in reviewing the district court's departure determinations in this case is fully consistent with the "due deference" standard of 18 U.S.C. 3742(e). Applying its earlier decision in United States v. Joan, 883 F.2d 491, 493-496 (6th Cir. 1989), the court of appeals applied the three-step analysis for reviewing departure decisions first articulated by the First Circuit in United States v. Diaz-Villafane, 874 F.2d 43, 49-50, cert. denied, 110 S. Ct. 177 (1989). Pet. App. 4-5. See also United States v. Rodriquez, 882 F.2d 1059, 1067 (6th Cir. 1989), cert. denied, 110 S. Ct. 1144 (1990). Under that analysis, the court of appeals first determines as a question of law, subject to plenary review, whether the circumstances on which the district court relied are sufficiently "unusual" to warrant a departure from the Guidelines range. Second, the court of appeals decides as a factual matter, subject to review under the clearly erroneous standard, whether those factors are present in the case. Finally, the court of appeals determines whether the direction and degree of departure is "reasonable," having due regard for the factors to be considered in imposing sentence and the particular reasons cited by the district court for the sentence. Contrary to petitioners' contention, Pet. 21-23, the court of appeals did not review de novo or disregard the district court's factual findings in remanding this case for resentencing. Rather, under the first step of its analysis the court of appeals reviewed de novo whether the circumstances identified by the district court were sufficiently "unusual" to warrant departure from the Guidelines range. That determination derives directly from the requirement of 18 U.S.C. 3553(b) that the basis for a departure be an aggravating or mitigating circumstance of a kind or to a degree not adequately taken into consideration by the Sentencing Commission in formulating the Guidelines. For that reason, the courts of appeals agree that that determination is essentially a question of law subject to plenary review. See United States v. Diaz-Villafane, 874 F.2d at 49; United States v. Ryan, 866 F.2d 604, 610 (3d Cir. 1989); United States v. Summers, 893 F.2d 63, 66 (4th Cir. 1990); United States v. Williams, 901 F.2d 1394, 1396 (7th Cir. 1990); United States v. Lang, 898 F.2d 1378, 1379-1380 (8th Cir. 1990); United States v. Lira-Barrazza, 897 F.2d 981, 984-985 (9th Cir. 1990); United States v. White, 893 F.2d 276, 277-278 (10th Cir. 1990); United States v. Burns, 893 F.2d 1343, 1345 (D.C. Cir. 1990). In the absence of any conflict among the courts of appeals over the application of a plenary standard of review to determine whether a district court relied on legally permissible grounds for a departure under 18 U.S.C. 3553(b), review by this Court is unwarranted. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General EDWARD S.G. DENNIS, JR. Assistant Attorney General JOSEPH C. WYDERKO Attorney AUGUST 1990 /1/ The presentence report calculated petitioners' total offense level to be 11 under the criminal livelihood provision of Guidelines Section 4B1.3, which applies when a defendant commits an offense as a part of a pattern of criminal conduct from which she derives a substantial portion of her income. At the sentencing hearing, however, the government agreed that Guidelines Section 4B1.3 does not apply in this case. Pet. App. 2-3. /2/ The Sentencing Commission's general policy statement regarding departures is set forth in Guidelines Section 5K2.0, which provides in part that: Circumstances that may warrant departure from the guidelines pursuant to (18 U.S.C. 3553(b)) cannot, by their very nature be comprehensively listed and analyzed in advance. The controlling decision as to whether and to what extent departure is warranted can only be made by the court at the time of sentencing. Nonetheless, the present section seeks to aid the court by identifying some of the factors that the Commission has not been able to fully take into account in formulating precise guidelines. Any case may involve factors in addition to those identified that have not been given adequate consideration. Presence of any such factor may warrant departure from the guidelines, under some circumstances, in the discretion of the sentencing judge. Similarly, the court may depart from the guidelines, even though the reason is listed elsewhere in the guidelines (e.g., as an adjustment or specific offense characteristic), if the court determines that, in light of the unusual circumstances, the guideline level attached to that factor is inadequate. /3/ Petitioners err in relying, Pet. 19, on United States v. Big Crow, 898 F.2d 1326 (8th Cir. 1990), to justify the departures here. In that case, the Eighth Circuit merely concluded that the defendant's excellent employment history, solid community ties, and consistent efforts to lead a decent life in the adverse environment of an Indian reservation were "sufficiently unusual" to constitute grounds for a departure. Id. at 1332. /4/ Contrary to petitioners' contention, Pet. 20, the bank president's recommendation of clemency did not constitute a proper independent ground to justify the departures. As the court of appeals explained, Pet. 13-14, the bank president's letter recommended leniency based on such factors as petitioners' employment history, community support, prompt restitution and family responsibilities, which were already taken into account by the Sentencing Guidelines. For that reason, petitioners' reliance, Pet. 20, on United States v. Pipich, 688 F. Supp. 191 (D. Md. 1988), is misplaced. In that case, the court merely held that a defendant's exemplary military service justified a downward departure because the Sentencing Guidelines do not explicitly take into consideration a person's military record. Id. at 192-193. In any event, we note that the Eighth Circuit recently ruled that a defendant's military record does not constitute an unusual circumstance justifying a departure where the military service "is not meaningfully distinguishable from the work history of steadily employed individuals holding responsible positions in the civilian work force." United States v. Neil, 903 F.2d 564, 566 (8th Cir. 1990). /5/ In part, 18 U.S.C. 3742(e) provides: The court of appeals shall give due regard to the opportunity of the district court to judge the credibility of the witnesses, and shall accept the findings of fact of the district court unless they are clearly erroneous and shall give due deference to the district court's application of the guidelines to the facts. That provision was added as part of the Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, Tit. VII, Section 7103(a)(7), 102 Stat. 4417 (1988). The legislative history of that provision explains its purpose as follows: This standard is intended to give the court of appeals flexibility in reviewing an application of a guideline standard that involves some subjectivity. The deference due a distirict (sic) court's determination will depend upon the relationship of the facts found to the guideline standard being applied. If the particular determination involved closely resembles a finding of fact, the court of appeals would apply a clearly erroneous test. As the determination approaches a purely legal determination, however, the court of appeals would review the determination more closely. 134 Cong. Rec. H11257 (daily ed. Oct. 21, 1988).