                                                                                                                           Opinions of the United
1995 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-28-1995

USA v Evans
Precedential or Non-Precedential:

Docket 94-1546




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            UNITED STATES COURT OF APPEALS
                FOR THE THIRD CIRCUIT

                       ___________

                       No. 94-1546
                       ___________


               UNITED STATES OF AMERICA

                           v.

                  FRANK JOSEPH EVANS,
                                 Appellant


   _______________________________________________

   On Appeal from the United States District Court
      for the Eastern District of Pennsylvania
          (D.C. Criminal No. 92-cr-00689-5)
                 ___________________


   Submitted Pursuant to Third Circuit LAR 34.1(a)
                  November 3, 1994

Before:   GREENBERG, SCIRICA and LEWIS, Circuit Judges

             (Filed:   February 28, l995 )


                    L. FELIPE RESTREPO, ESQUIRE
                    Krasner & Restrepo
                    924 Cherry Street, 2nd Floor
                    Philadelphia, Pennsylvania 19107

                        Attorney for Appellant


                    FRANCIS C. BARBIERI, JR., ESQUIRE
                    Office of the United States Attorney
                    615 Chestnut Street
                    Philadelphia, Pennsylvania 19106

                        Attorney for Appellee
                          __________________

                         OPINION OF THE COURT
                          __________________


SCIRICA, Circuit Judge.


            Frank Joseph Evans and nine other defendants were

charged in a 25-count indictment with conspiracy and drug

trafficking offenses.     On April 21, 1993, Evans pled guilty to

conspiracy to distribute more than five kilograms of cocaine (21

U.S.C. § 846 (1988)) and criminal forfeiture (21 U.S.C. § 853

(a)(1)-(2) (1988)).    On July 8, 1993, the defendant filed a pro

se motion to withdraw his guilty plea which was denied on October

15, 1993.    On May 9, 1994, the defendant was sentenced to 360

months imprisonment followed by five years supervised release.

He was also ordered to pay a special assessment of $50 and a fine

of $1,000.    We will vacate the defendant's sentence and remand to

the district court for resentencing.

                                  I.

             The defendant was arrested in Houston, Texas on July

20, 1992, while operating a motor vehicle containing 36 kilograms

of cocaine in a concealed compartment.     He identified himself to

law enforcement officers as Frank Evans and produced a

Pennsylvania driver's license which confirmed this information.

On at least three subsequent court appearances, including his

change of plea hearing, the defendant identified himself as Frank

Evans.
          The defendant's true identity was first learned when he

disclosed it to a probation officer after he pled guilty but

before his sentencing.   The government, through fingerprint

comparison, confirmed the defendant was in fact Ronald Dawkins.

Dawkins had a prior criminal record and was wanted as a parole

absconder and fugitive in South Carolina.

          At sentencing, the district court rejected the

government's contention that the defendant obstructed justice by

giving law enforcement officials a false name and denied the

defendant's request for a downward departure based upon his

disclosure of his true identity.     The court then sentenced the

defendant to 360 months imprisonment.1

                               II.

          The district court may depart from the applicable range

calculated under the United States Sentencing Guidelines where

"the court finds that there exists an aggravating or mitigating

1
 . The presentence report determined the defendant's base
offense level to be 40 because of his participation in the
delivery of between 500 and 700 kilograms of cocaine. This was
supported by testimony presented by the government at the
sentencing hearing. The base level was increased by two for the
defendant's role as a manager in the organization under U.S.S.G.
§ 3B1.1(c) and decreased by two for his acceptance of
responsibility under U.S.S.G. § 3E1.1(a). The defendant's
criminal history was determined to be in category III, based on
five criminal history points. Two of these points were assigned
because the offense was committed during a period of a previous
criminal justice sentence, including parole, and the other three
points resulted from the prior conviction itself. Thus, the five
points were added as a direct result of the defendant's
disclosure of his true identity. Absent this disclosure, the
defendant would have had no criminal history points (criminal
history category I), and the minimum sentence under the
guidelines would have been 292 months instead of 360 months.
circumstance of a kind, or to a degree, not adequately taken into

consideration by the Sentencing Commission in formulating the

guidelines that should result in a sentence different from that

described."    18 U.S.C. § 3553(b) (1988).   According to the policy

statement in U.S.S.G. § 5K2.0, circumstances that may warrant

departure are generally of two kinds: factors the Commission did

not adequately consider in formulating the guidelines and factors

that were considered but resulted in an inadequate guideline

level because of unusual circumstances substantially in excess of

the ordinary.

          A discretionary decision by the trial judge that a

departure is not justified is not reviewable.    See United States

v. Gaskill, 991 F.2d 82, 84 (3d Cir. 1993); United States v.

Higgins, 967 F.2d 841, 844 (3d Cir. 1992).    But there is

appellate jurisdiction where a court refuses to depart from the

guidelines because it believes it lacks the authority to do so.

Gaskill, 991 F.2d at 84; Higgins, 967 F.2d at 844.

          In this case, the defendant maintains that except for

his voluntary disclosure, his true identity would not have been

ascertained.    The probation officer who prepared the presentence

investigation acknowledged he would not have discovered the

defendant's true identity without the disclosure:    "[A]s far as I

knew he had no criminal history and I would not have looked any

further from that point. . . .   [I] would never have found out

who he was."

          The defendant contends that his voluntary admission to

the probation officer of his true identity and his prior record
are circumstances of a kind or to a degree not contemplated by

the sentencing guidelines.    He maintains that his sentence should

be vacated and the matter remanded for resentencing because the

district court erroneously believed it did not have authority to

depart downward from the sentencing guideline range.

            The government claims the sentencing court believed it

possessed the authority under § 5K2.0 to depart if it found that

circumstances warranted, but decided there was no basis for such

a departure.    Evidence of this belief, the government contends,

is found in the court's order of May 3, 1994, stating in part,

"it is hereby ORDERED that parties are notified that this Court

is considering a reduction in the criminal history category --

from category III to category I -- under which Mr. Evans will be

sentenced pursuant to § 5K2.0 due to the unique circumstances

that surrounded Mr. Evans' presentence report interview."

            It is true that a substantial portion of the sentencing

hearing was devoted to a discussion of the possibility of

downward departure because the defendant had volunteered

information that resulted in an increase in his criminal history

category.    During this discussion the court stated:
            But secondly . . . am I not entitled in
            measuring in some way the credit that's to be
            given for acceptance of responsibility or for
            something else, entitled to take into
            consideration that this man volunteered all
            this knowledge with these consequences, not
            that he had a right to withhold it, but that
            despite the consequences he volunteered it?
            And I just wonder whether that is a situation
            which is -- was contemplated by the drafters
            of the guidelines.
But at the conclusion of the hearing the judge stated:
          I hold that I do not have the power to apply
          a lesser guideline or to make a downward
          departure. I must say that I feel that . . .
          a 30-year sentence is more severe than I
          would impose were I free to find a lesser
          guideline or free to depart downward. But I
          hold that I do not have the power.


          Although the government makes a plausible argument that

the court determined there was no justification for a departure,

the matter is sufficiently ambiguous ("I hold that I do not have

the power . . . .") to require vacating the sentence and

remanding if the defendant's actions could satisfy the

requirements of U.S.S.G. § 5K2.0.    Cf. United States v. Mummert,
34 F.3d 201, 205 (3d Cir. 1994) (vacating sentence and remanding

to district court because "the record does not make clear whether

the district court's denial of departure was based on legal or

discretionary grounds").

                              III.

          U.S.S.G. § 5K2.0 quotes the language of 18 U.S.C. §

3553(b), permitting the sentencing court to "impose a sentence

outside the range established by the applicable guideline, if the

court finds 'that there exists 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 that should result in a sentence different from that

described.'"

          To determine whether a proposed departure satisfies §

5K2.0, we must first consider whether the defendant's actions
could constitute a "mitigating circumstance."   If so, then we

must decide whether such circumstance is "of a kind, or to a

degree, not adequately taken into consideration by the Sentencing

Commission in formulating the guidelines that should result in a

sentence different from that described."   U.S.S.G. § 5K2.0

(quoting 18 U.S.C. § 3553(b)).

                                 A.

          Since the adoption of the sentencing guidelines, courts

have been wrestling with just what constitutes a mitigating

circumstance that justifies downward departure.     In United States

v. Lieberman, 971 F.2d 989, 998-99 (3d Cir. 1992), we permitted

the district court to depart downward when a prosecutor's

manipulation of an indictment foreclosed the grouping of two

related offenses under the guidelines, thereby resulting in a

higher sentence than usual.   We allowed the departure because

otherwise "it would raise the prosecutor to a position supreme

over the district judge vis-a-vis sentencing by virtue of the

uncontrolled charging discretion."    Id. at 998.   In United States

v. Gaskill, 991 F.2d 82 (3d Cir. 1993), we allowed a downward

departure because the defendant was the sole source of care for

his mentally ill wife.   In so holding, we noted that "departures

are an important part of the sentencing process because they

offer the opportunity to ameliorate, at least in some aspects,

the rigidity of the Guidelines themselves."   Id. at 86.    Thus, as

we noted in United States v. Bierley, 922 F.2d 1061, 1067 (3d

Cir. 1990), "[i]f a case is atypical, or for some other reason

falls outside the scope of cases considered by the Sentencing
Commission, the Guidelines have fairly expansive language

allowing for discretionary departure."

          But in United States v. Newby, 11 F.3d 1143, 1148-49

(3d Cir. 1993), cert. denied, 114 S.Ct. 1841 (1994), we held that

prisoners' loss of good time credits as a disciplinary sanction

for assaulting prison guards could not be considered a mitigating

factor in their subsequent convictions and sentences for

assaulting, impeding, and interfering with those same guards.      We

stated that "[t]he gravamen of a mitigating circumstance is that

it somehow reduces the defendant's guilt or culpability.    It is a

circumstance that 'in fairness and mercy, may be considered as

extenuating or reducing the degree of moral culpability.'" Id. at

1148 (quoting Black's Law Dictionary 1002 (6th ed. 1990)).

          The government here cites the Newby definition of

"mitigating circumstance" and contends that the defendant's

disclosure of his identity does not impact upon his "guilt or

culpability" for the offense.   But the government's reliance on

Newby is misplaced.   In United States v. Monaco, 23 F.3d 793 (3d

Cir. 1994), the government offered a similar argument as to why

the defendant's anguish at seeing his son convicted for aiding

and abetting his crime could not be used as the basis for a

downward departure.   We rejected that contention, noting that

"the Commission [did] not intend to limit the kinds of factors,

whether or not mentioned elsewhere in the guidelines, that could

constitute grounds for departure in an unusual case."   Id. at 803
(quoting U.S.S.G. Manual 6 (1993)).   We noted in Monaco that the
reasons for departure in Gaskill and Lieberman had nothing to do
with the defendant's culpability.   We held, therefore, that "to

the extent that Newby's pronouncement on moral culpability can be

read to implicitly overrule decisions such as Gaskill and

Lieberman, the Newby language must be considered dictum.

Accordingly, nothing in Newby prevents a downward departure in

this case."   Id. (citation and footnote omitted).2

         We find the Monaco reasoning applicable to this case.

          Furthermore, a less restrictive view of the district

court's discretion to depart downward is bolstered by the

Sentencing Commission's recent amendment to U.S.S.G. § 5K2.0.

The amendment, which became effective on November 1, 1994, added

the following language:
          An offender characteristic or other
          circumstance that is not ordinarily relevant
          in determining whether a 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 (Policy Statement)

          The Sentencing Commission said this amendment provided

guidance "as to when an offender characteristic or other


2
 . Monaco did not, however, disturb Newby's holding that the
loss of good time credits did not merit downward departure. As
we noted in Monaco, "we construe Newby as focusing primarily on
the fact that because criminal sentences and disciplinary
sanctions are designed to serve different purposes, a departure
would defeat the goals of the criminal justice system by giving
incarcerated defendants lesser sentences than they deserved." 23
F.3d 793, 803 n.16 (3d Cir. 1994).
circumstance (or combination of such characteristics or

circumstances) that is not ordinarily relevant to a determination

of whether a sentence should be outside the applicable guideline

range may be relevant to this determination."   Amendment 508,

U.S.S.G. App. C.   The amendment provides that a court may use a

broad range of factors in departing from the guidelines, allowing

characteristics or circumstances "not ordinarily relevant" to be

considered if "important to the statutory purposes of

sentencing."   Therefore, we believe the defendant's disclosure of

his true identity could constitute a "mitigating circumstance,"

within the meaning of § 5K2.0.

                                 B.

          Although we have determined that defendant's conduct

potentially could constitute a "mitigating circumstance," we

still must examine whether such circumstance could be "of a kind,

or to a degree, not adequately taken into consideration by the

Sentencing Commission in formulating the guidelines."     U.S.S.G. §

5K2.0.   The defendant contends that his disclosure of his true

identity constitutes a basis for departure as acceptance of

responsibility substantially in excess of the norm under § 5K2.0

and our decision in United States v. Lieberman, 971 F.2d 989 (3d

Cir. 1992).

          In Lieberman, a bank vice president was accused by bank

officials of embezzlement.   Once accused, Lieberman immediately

admitted his wrongdoing, resigned his position, explained to bank

managers how they could detect such wrongdoing in the future, and

agreed to make restitution for more than he thought he owed.     Id.
at 991, 996.    Lieberman received an initial two-level deduction

for acceptance of responsibility under U.S.S.G. § 3E1.1(a),3 as

did the defendant here.   The district court then departed from

the guidelines by granting Lieberman a one-level reduction based

on his "unusual degree of acceptance of responsibility."       Id. at

992.

            After a thorough review of the guidelines' treatment of

"acceptance of responsibility" and the justifications for a

downward departure, we stated in Lieberman that "[t]here is some

indication from the Sentencing Commission that the scheme

established by the Guidelines encompasses a departure for the

degree of acceptance of responsibility."   Id. at 995.   We

affirmed the district court on this ground, noting 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'" and "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."   Id. at 996 (citations

omitted).

            The government claims, however, that defendant's

conduct here does not even merit recognition as acceptance of

responsibility and certainly not as acceptance "substantially in

3
 . U.S.S.G. § 3E1.1(a) provides: "If the defendant clearly
demonstrates acceptance of responsibility for his offense,
decrease the offense level by 2 levels." The commentary then
lists eight nonexclusive factors a court may consider in
determining whether to apply § 3E1.1.
excess of that ordinarily present," as required by Lieberman.

Id.   The government contends the defense position ignores the

tenuous nature and limited scope of the defendant's acceptance of

responsibility.4   In fact, the government maintains that the

defendant's disclosure of his true name was nothing more than

what was required of him and, had he failed to do so, he would

have been subject to an enhancement for obstruction of justice

pursuant to U.S.S.G. § 3C1.1.   Compare United States v. Mohammed,

27 F.3d 815, 822 (2d Cir.) ("An obstruction enhancement is

warranted when a defendant provides false information [such as

his name] to the Probation Department."), cert. denied, 115 S.

Ct. 451 (1994), with United States v. Alpert, 28 F.3d 1104, 1107-

08 (11th Cir. 1994) (en banc) ("[A] district court applying the

enhancement because a defendant gave a false name at arrest must

explain how that conduct significantly hindered the prosecution

or investigation of the offense.").5



4
 . It is true that soon after pleading guilty the defendant
moved to withdraw his guilty plea. When that motion was denied,
he then contested the extent of his involvement in the conspiracy
and disputed the claim that he had held a position as a
supervisor in the organization. By accepting the probation
department's recommendation, however, the government contends the
court necessarily found that the defendant had been responsible
for the distribution of more than 500 kilograms of cocaine and
had maintained a managerial role in the conspiracy. These are
factors for the district court to consider in determining whether
to exercise its discretion to depart downward.
5
 . We note that an Application Note to U.S.S.G. § 3E1.1 states
that "a defendant is not required to volunteer, or affirmatively
admit, relevant conduct beyond the offense of conviction in order
to obtain a reduction" under this section.
          Although we do not condone the defendant's concealment

of his true identity, we do not believe the district court is

foreclosed from deciding that the defendant's later disclosure of

his correct name might warrant downward departure.   As we noted,

the probation officer who prepared the presentence investigation

admitted he would not have discovered the defendant's true

identity without the disclosure.    It would appear, therefore,

that the defendant has made a colorable argument that his

voluntary disclosure of identity might constitute a degree of

acceptance of responsibility substantially in excess of the norm.

The district court indicated at the sentencing hearing that the

defendant's disclosure despite the consequences might present

such a situation of extraordinary acceptance of responsibility

not contemplated by the guidelines.    We leave this determination

to the discretion of the sentencing court.

                              IV.

          For the foregoing reasons, we will vacate the

defendant's sentence and remand to the district court for

resentencing.
