                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-29-2002

USA v. Sutton
Precedential or Non-Precedential: Non-Precedential

Docket No. 01-3909




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                                               NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT


                                     No. 01-3909


                           UNITED STATES OF AMERICA

                                          v.

                                  OLAUF SUTTON,
                                     a/k/a MO,

                                Olauf Sutton, Appellant



                  On Appeal from the United States District Court
                     for the Eastern District of Pennsylvania
                        (D.C. Criminal No. 01-cr-00146)
                     District Judge: Hon. Eduardo C. Robreno


                       Submitted Under Third Circuit LAR 34.1(a)
                                  September 24, 2002

               Before: BARRY, AMBRO and COWEN, Circuit Judges

                                 (Filed             )

                                  _______________

                                      OPINION
                                  _______________


COWEN, Circuit Judge
        Defendant Olaf Sutton1 appeals from the District Court’s judgment entered on

October 18, 2001, asserting that the District Court erred in sentencing. We will affirm.

                                               I.

        Sutton robbed two FDIC-insured banks in 2000. He was arrested on January 11,

2001, and confessed that he had committed both robberies. On May 11, 2001, he pled

guilty to two counts of bank robbery in violation of 18 U.S.C. § 2113(a) pursuant to a plea

agreement.

        The District Court sentenced Sutton under the United States Sentencing Guidelines

(“U.S.S.G.”). The Presentence Investigation Report (“PSI”) stated that Sutton’s total

offense level was 23 and his criminal history category was III, resulting in a sentencing

range of 57 to 71 months. The PSI further indicated that Sutton was subject to the career

offender provision, U.S.S.G. § 4B1.1, because of two prior convictions. These two

convictions were for simple assault committed in 1988 when Sutton was 18 years old and

for a 1991 robbery committed at the age of 21. He received a sentence of “time in to 12

months” for the simple assault conviction and 11 ½ to 23 months for the robbery

conviction. In 1989 at the age of 19, Sutton was convicted of possession of .85 grams of

crack cocaine and was sentenced to one year of probation. He subsequently committed a

parole violation, apparently due to unsatisfactory progress in a drug treatment program. He




 1
     The docket incorrectly indicates that Sutton’s first name is “Olauf.”

                                               2
was therefore re-sentenced on the robbery conviction to a term of imprisonment of 20 to

40 months.

       The career offender designation increased Sutton’s offense level to 29 and his

criminal history category to VI. This increase resulted in a sentencing range of 151 to 188

months.

       Sutton objected to the career offender enhancement, arguing that any such

enhancement would be unconstitutional under the Supreme Court’s ruling in Apprendi v.

New Jersey, 530 U.S. 466 (2000). The District Court, citing our ruling in United States v.

Williams, 235 F.3d 858 (3d Cir. 2000), cert. denied, 122 S. Ct. 49 (2001), concluded that

Apprendi was inapplicable because, even with this enhancement, any sentence would still

not exceed the 20-year maximum sentence for bank robbery specified by 18 U.S.C. §

2113(a).

       Sutton moved for a downward departure pursuant to U.S.S.G. § 4A1.3, the policy

statement permitting departures on the grounds of over-representation of criminal history.

He argued that the simple assault conviction was a misdemeanor offense only “technically”

considered a violent felony for purposes of U.S.S.G. § 4B1.1. He further asserted that his

prior offenses were committed at a young age when he was coming to terms with childhood

sexual abuse. In support of this departure motion, Sutton submitted a psychological

evaluation addressing such matters as his history of sexual abuse and psychological

difficulties.



                                             3
       The District Court, although conceding that it was “a close call,” denied the motion

for departure. App. at 77. Although recognizing that it possessed the authority to depart, it

concluded “that this is not an appropriate case in which that authority should be exercised.”

Id. at 80. The District Court justified its determination by considering both Sutton’s past

and an example provided by the policy statement itself:

             . . . I look at the instruction under the guideline [U.S.S.G. § 4A.3] itself
       which points out to a - - an example of where a departure may be appropriate,
       and that’s a defendant with two minor - - misdemeanor convictions close to
       ten years prior to the instant offense and no other evidence of prior criminal
       behavior in the intervening period.

              In this case, we have, of course, the robbery in the intervening period.
       We also have the violation of parole. The ten years intervening period, of
       course, must be shortened by the time in which the defendant was
       incarcerated, and that would be reduced significantly.

              So, weighing those against the factors which counsel has identified,
      youth at the time the offenses were committed and length of time, and what
      appears to be a - - the psychological history of the defendants, taking that into
      account and weighing that against the defendant’s involvement in criminal
      behavior during the intervening year, from the time the convictions occurred,
      I find that this is not an appropriate case and that the defendant’s criminal
      history category does not over represent the seriousness of the defendant’s criminal history or the l
commit further crimes. Given the nature of the violent crimes involved here, this is not a
case which a departure would be appropriate.

Id. at 80-81. The District Court entered a judgment of conviction on October 18, 2001 and

sentenced Sutton to a term of imprisonment of 151 months, three years of supervised

release, restitution in the amount of $9,233.00, and a $200.00 special assessment. Sutton

timely appealed.

                                               II.


                                               4
       Sutton asserts that the District Court, in denying his motion for a downward

departure, “misapprehended” its authority to depart based on an erroneous application of a

non-analogous example provided by U.S.S.G. § 4A1.3. He further contends that the District

Court’s enhancement of his sentence under U.S.S.G. § 4B1.1 was unconstitutional under

Apprendi. Both of these arguments are without merit.

       We lack jurisdiction to review a district court’s discretionary refusal to grant a

downward sentencing departure where the district court was aware of its power to order

such a departure. See, e.g., United States v. McQuilkin, 97 F.3d 723, 729-30 (3d Cir.

1996); United States v. Denardi, 892 F.2d 269, 271-72 (3d Cir. 1989). We do have

jurisdiction to determine whether a district court “acted under a misapprehension of the

standards for departure under the [Sentencing] Guidelines.” United States v. Gaskill, 991

F.2d 82, 84 (3d Cir. 1993); see also, e.g., United States v. Torres, 251 F.3d 138, 144-45

(3d Cir.), cert. denied, 122 S. Ct. 1307 (2001); McQuilkin, 97 F.3d at 729-30.

       The District Court fully acknowledged its power to depart on the grounds of over-

representation of criminal history. In refusing to depart, it relied on the following example

provided by U.S.S.G. § 4A1.3:

       There may be cases where the court concludes that a defendant’s criminal
       history category significantly over-represents the seriousness of a
       defendant’s criminal history or the likelihood that the defendant will commit
       further crimes. An example might include the case of a defendant with two
       minor misdemeanor convictions close to ten years prior to the instant
       offense and no other evidence of prior criminal behavior in the intervening
       period. The court may conclude that the defendant’s criminal history was
       significantly less serious than that of most defendants in the same criminal


                                              5
       history category (Category II), and therefore consider a downward departure
       from the guidelines.

       Sutton argues that this reliance was inappropriate because, while the defendant in the

example was in Criminal History Category II, the career offender enhancement placed

Sutton in Criminal History Category VI. According to Sutton, the District Court erred in

not comparing his criminal history with the histories of other Criminal History Category VI

offenders. The government admits that a District Court arguably would commit legal error

if it held “that a downward departure is available under [U.S.S.G. § 4A1.3] only where a

defendant, in any criminal history category, meets the exact example cited in the [policy

statement].” Gov’t’s Br. at 13. The District Court, however, did not make such a holding,

and it was proper for the District Court to turn for guidance to the example in the policy

statement. The District Court took into account other considerations such as the “nature of

the violent crimes involved here,” App. at 81, Sutton’s age at the time of the two prior

convictions, and his psychological history.

       Sutton further argues that the District Court misinterpreted the example’s reference

to the absence of criminal behavior in the “intervening period.” He contends that the

example refers to the period between the most recent of the prior convictions and the

instant offense, and he asserts that the District Court erred in stating that the prior robbery

conviction occurred “in the intervening period.”2 Id. at 80. Any possible mistake by the


 2
    Sutton, in his initial brief, argues that the District Court made a clearly erroneous
factual error in stating that Sutton committed a robbery in the intervening period. In his
reply brief, Sutton apparently restates this assertion in terms of a misapprehension of legal

                                               6
District Court clearly does not rise to the level of reversible error given that this example

merely provided guidance for the District Court’s exercise of its discretion. Even

assuming that the intervening period did not begin until after Sutton’s robbery conviction,

Sutton still violated the terms of his parole and was imprisoned during the applicable

period. Particularly because of the District Court’s recognition of its power to depart and

its full consideration of the factors weighing for and against such departure, we conclude

that the District Court did not misapprehend the legal standards governing its determination

not to depart.

       Sutton further argues that the career offender sentencing enhancement was

unconstitutional under Apprendi because the fact of his two prior convictions and his age at

the time of the two bank robberies were neither pled in the indictment nor proved to a jury

beyond a reasonable doubt. The Supreme Court held that “any fact[, other than the fact of a

prior conviction,] that increases the penalty for a crime beyond the prescribed statutory

maximum must be submitted to the jury and proved beyond a reasonable doubt.” Apprendi,

530 U.S. at 491. We exercise plenary review over the District Court’s determination that

Apprendi does not apply. See, e.g., Williams, 235 F.3d at 861.

       The District Court ruled that Apprendi does not apply due to the maximum sentence

authorized by the bank robbery statute itself. Sutton’s sentence of 151 months

imprisonment clearly falls below the maximum statutory sentence of 20 years




standards. We consider the contention under the terms provided by the reply brief.

                                              7
imprisonment for one count of bank robbery. 18 U.S.C. § 2113(a). Sutton, however,

contends that Apprendi is applicable because the finding of career offender status

increased the sentencing range under the U.S.S.G. and perhaps even established a mandatory

minimum sentence. As Sutton acknowledges, we have held that Apprendi does not apply to

the increase in a defendant’s sentence under the U.S.S.G. where the sentence imposed does

not exceed the statutorily prescribed maximum. Williams, 235 F.3d at 862-63; see also,

e.g., United States v. Pressler, 256 F.3d 144, 159 (3d Cir.), cert. denied, 122 S. Ct. 503

(2001). After the submission of Sutton’s initial brief, a majority of the Supreme Court

held in Harris v. United States, 122 S. Ct. 2406 (2002), that the requirements of Apprendi

are inapplicable to “a fact increasing the mandatory minimum (but not extending the

sentence beyond the statutory maximum),” id. at 2414 (plurality opinion) (Kennedy, J.).3

Given that the sentence imposed by the District Court after the career sentencing

enhancement clearly falls below the statutory maximum, we hold that Apprendi is

inapplicable here.4

                                             III.

 3
   Justice Kennedy wrote the plurality opinion in Harris, which was joined as to the
question of the applicability of Apprendi to mandatory minimums by Chief Justice
Rehnquist, Justice O’Connor, and Justice Scalia. Justice Breyer also joined in the plurality
opinion “to the extent that it holds that Apprendi does not apply to mandatory minimums”
and the Court’s judgment. Harris, 122 S. Ct. at 2421 (Breyer, J., concurring in part and
concurring in judgment).
 4
    Although we need not reach the issue, the Court further notes that the government was
not required to allege Sutton’s prior convictions in the indictment and prove the fact of
these convictions to a jury beyond a reasonable doubt. See, e.g., United States v. Weaver,
267 F.3d 231, 250-51 (3d Cir. 2001), cert. denied, 122 S. Ct. 1118 (2002).

                                             8
       For the foregoing reasons, we will dismiss the appeal seeking review of the failure

of the District Court to depart and, in all other respects, we will affirm the October 18,

2001 judgment of the District Court.



TO THE CLERK:

       Please file the foregoing opinion.




                                            United States Circuit Judge




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