
USCA1 Opinion

	




          November 7, 1994      [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-1151        No. 94-1227                              UNITED STATES OF AMERICA,                                      Appellant,                                          v.                                   GARY P. WLODYKA,                                 Defendant, Appellee.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE                [Hon. Martin F. Loughlin, Senior U.S. District Judge]                                          __________________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                          Boudin and Stahl, Circuit Judges.                                            ______________                                 ____________________            Peter  E. Papps, First Assistant United States Attorney, with whom            _______________        Paul M. Gagnon, United States Attorney,  was on briefs for the  United        ______________        States.            Charles  S.  Temple,  by  Appointment  of  the  Court,  with  whom            ___________________        Upshall, Cooper & Temple, P.A. was on brief for appellee.        _______  _____________________                                 ____________________                                 ____________________                 Per  Curiam.  On January 26, 1990, a jury convicted Gary                 ___________            Wlodyka of possession with intent to distribute marijuana and            cocaine.  21 U.S.C.   841(a)(1).  At sentencing, the district            judge concluded that the defendant had an offense level of 32            and a criminal history category  of 6, generating a guideline            range  of 210 to 262  months.  Departing  downward, the court            sentenced defendant to 168 months' imprisonment.                 The  grounds  for  the  departure included  a  harrowing            childhood, involving  the  suicide of  one parent,  attempted            suicide by another, a stint in an orphanage, and finally rape            by an alcoholic stepfather  and continued physical and sexual            abuse; service in the Marine  Corps in Vietnam and subsequent            addiction to drugs (derived in part from treatment for injury            while  in service)  and  later  treatment for  post-traumatic            stress disorder;  and present  infection with the  HIV virus.            In the  sentencing memorandum,  the court noted:   "overkill,            life sentence,  defendant dying from  AIDS, Vietnam  veteran,            drug addicted."                   On June 18,  1990, Wlodyka asked  the district court  to            have  an  appeal filed  on his  behalf.   The  district court            denied the  request as  untimely, and  Wlodyka appealed.   On            June 27,  1990, this court in an  unpublished order sustained            the  district court's action.  This court declined to pass on            the  claim that defendant had not been given timely notice of                                         -2-                                         -2-            his right to appeal, noting that relief on this ground should            be sought under 28 U.S.C.   2255.                   After an  unsuccessful effort to reduce  his sentence by            motion under Fed. R. Crim. P. 35, a ruling summarily affirmed            by this court on  appeal, United States v. Wlodyka,  953 F.2d                                      _____________    _______            632  (1st Cir.  1991)  (per curiam),  Wlodyka filed  a motion            under 28 U.S.C.    2255.  He  argued that the district  court            had failed at  the time  of sentencing to  advise him of  his            right to appeal, as required by  Fed. R. Crim. P. 32; he also            urged  ineffective assistance  of  counsel at  sentencing,  a            claim  later rejected  and not  appealed  by Wlodyka.   After            hearings  in late  1993 and  early 1994,  the district  court            determined  that it had not complied with Rule 32 and granted            the defendant a new sentencing hearing.                 On January 20, 1994, a new sentencing hearing  was held.            Defendant presented evidence, addressed  to the events in his            history  already  described,  but  more  extensive  than  the            evidence offered at the  time of his original sentence.   The            district  court   gave  Wlodyka  a  two-point  reduction  for            acceptance of responsibility, which  had been withheld in the            original sentence, and determined  that he had reduced mental            capacity  as well as a  serious medical condition  due to his            current HIV  affliction.  Departing downward,  the court then            sentenced  the defendant to 100 months  of imprisonment.  The            government now appeals.                                         -3-                                         -3-                 On  appeal,  the   government  does  not  dispute   that            defendant  was entitled to be resentenced because of the Rule            32 violation but argues that the only remedy available to the            district court  was to vacate the original  sentence and then            reimpose it  in precisely the  same terms.   The government's            premise is that vacating the old sentence but then reimposing            the same sentence  gives the  defendant just what  he or  she            would have had  if the  Rule 32 warning  had been  originally            given,  that   is,  a  right  to  appeal  from  the  sentence            originally imposed.  Anything more, says the government, is a            second bite at  the apple  and a potential  windfall for  the            defendant.                 In the  ordinary case,  we  agree that  the natural  and            adequate remedy is to vacate  and reimpose the same sentence.            But  being  unable  to  envisage every  possibility,  we  are            unwilling to establish  an ironclad, mechanical rule.  In any            event, this is certainly not a jurisdictional matter, and the            objection now  raised by the government  was not sufficiently            brought home to the district judge at or before resentencing.            Accordingly,  we think  that  the government  has waived  its            potential objection in this case.                 At the original  section 2255 hearing, the  government's            main argument  was that the  error had been  harmless because            Wlodyka necessarily knew that  he had a right to  appeal, and            the  appeal  was  in  any  event  frivolous.    Although  the                                         -4-                                         -4-            government did refer briefly to the possibility of reimposing            the  same sentence,  this somewhat  buried assertion  did not            clearly  apprise  the  district  judge  of  the  government's            present  position that this was the most he could legally do.            At the  resentencing itself, the government's argument, which            was extensive and thorough, was directed to explaining why on            the merits no lower sentence was appropriate.                 The  government's  next  claim  is  that  the  reduction            violates the law of the case doctrine.  The government points            to nothing specific that the district court said earlier from            which it is now departing.  This court affirmed the denial of            the  Rule 35  motion  without opinion  and  has never  spoken            directly about the sentence.   What has happened is  that the            district  court,   on   somewhat  different   evidence,   has            determined  that  the  departure  should be  larger  than  it            originally determined.                 In all events, without suggesting  that the law of  case            argument is frivolous, we  think it is unnecessary to  pursue            it.     As  with   the  limitation-of-remedy  issue   already            discussed,  we think that  the government did  not bring this            claim squarely  to the  attention of  the district  court and            cannot rely upon it on appeal.  Here, too, the government did            make  timely  references  in  the  district  court  to  prior            rulings; but the suggestion that the district court was bound                                         -5-                                         -5-            by  law of  the  case does  not  seem to  have been  squarely            presented.                 The  government's next  argument  is that  the  district            court erred at resentencing in granting a two-level reduction            for  acceptance of  responsibility.   The district  court had            declined  to do so at the original hearing because it thought            that  the  defendant  had accepted  responsibility  but  also            thought  that  it  was  barred from  granting  an  adjustment            because Wlodyka was a career offender.  The government agrees            that this was error and that the acceptance of responsibility            adjustment is available to Wlodyka if he otherwise qualifies.                 We  see no  reason  to discuss,  or  even describe,  the            merits  of the  acceptance of  responsibility dispute  beyond            saying that  both sides  appear to have  colorable arguments.            The sentence  in this case was based  on a departure from the            guideline  range.   The  district judge  knew precisely  what            Wlodyka  had said about his  own culpability and  when he had            made the  statements.    Whether  Wlodyka's  statements  were            technically an  acceptance of  responsibility or fell  barely            short appears to have had no effect on the 100-month sentence            ultimately selected.                   The  government's final  contention  is  a  kitchen-sink            argument that the entire departure was based on impermissible            grounds.   While the government  did not  appeal the  earlier            substantial   departure, its current position--it appears--is                                         -6-                                         -6-            that no departure at all is now justified.  How this position            is to  be reconciled with its  prior law of  case argument is            not explained.   In all events, the  government concedes that            the grounds  cited or  apparently considered by  the district            court are for the most  part "discouraged" but not prohibited            grounds for departure.                   A  clear-cut  legal  issue  would be  presented  if  the            district court had based the  departure upon any ground  that            was legally impermissible.  The government does in fact claim            that the court  was not entitled  to consider the  "childhood            trauma"  suffered  by the  defendant  because  of U.S.S.G.               5H1.12, which provides in full:  "Lack of guidance as a youth            and   similar   circumstances   indicating  a   disadvantaged            upbringing are  not relevant grounds for  imposing a sentence            outside the applicable guideline range."  It is sufficient to            say  that the  catalogue of  horrors already  recited  go far            beyond lack of guidance and a disadvantaged upbringing.                 Concluding that  the district court did not act upon any            specifically forbidden grounds, we are left with the question            whether  the district  court's  action  was unreasonable,  an            issue that is  open to judicial review  under the Guidelines.            18 U.S.C.   3742(e)(3).  Although the issue depends very much            on  the  individual  facts,   we  recognize  that  review  of            departures is contemplated by the statute and is  intended to            serve  a function.    With  this  in  mind,  we  have  looked                                         -7-                                         -7-            carefully at the transcript of the sentencing hearing setting            out evidence  pertaining to Wlodyka and  the district court's            explanation  for  its  action.     Having  given  the  matter            searching  consideration,  we  conclude  that  the  departure            granted was not outside the bounds  of reason and that it  is            time for this case to be brought to a close.                 Affirmed.                        ________                                         -8-                                         -8-
