
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 94-1288                                    UNITED STATES,                                      Appellee,                                          v.                                 ROBERT A. MORRISON,                                Defendant - Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                       [Hon. Rya W. Zobel, U.S. District Judge]                                           ___________________                      [Lawrence P. Cohen, U.S. Magistrate Judge]                                          _____________________                                 ____________________                                        Before                            Cyr and Stahl, Circuit Judges,                                           ______________                           and DiClerico,* District Judge.                                           ______________                                _____________________               Owen S. Walker, Federal Defender Office, for appellant.               ______________               David J. Apfel, Assistant  United States Attorney, with whom               ______________          Donald K.  Stern,  United  States  Attorney,  was  on  brief  for          ________________          appellee.                                 ____________________                                   February 3, 1995                                 ____________________                                        ____________________          *  Of the District of New Hampshire, sitting by designation.                    DICLERICO, District Judge.   Defendant-appellant Robert                    DICLERICO, District Judge.                               ______________          A. Morrison challenges the  sentence imposed following his guilty          plea  to robbery  charges.   Morrison does  not dispute  that the          sentence  is  within  the  Guideline  Sentencing   Range  ("GSR")          required   under   the   United   States   Sentencing  Guidelines          ("Guidelines" or "U.S.S.G.").  He claims, however, that the court          mistakenly believed it lacked  authority to depart below  the GSR          and seeks  a remand for a new sentencing hearing.  We dismiss the          appeal for lack of appellate jurisdiction.                                          I                                          I                                      BACKGROUND                                      BACKGROUND                    On December  2, 1993,  Morrison pled  guilty to a  one-          count indictment  charging him  with robbery of  Somerset Savings          Bank in  Somerville, Massachusetts, in  violation of 18  U.S.C.            2113(a).   This was not Morrison's first offense.  Morrison began          his  criminal career at  age seventeen with  a shoplifting charge          that was dismissed upon payment  of restitution.  Soon thereafter          he  was  implicated  in  two  minor  cases  that  terminated   in          dismissals.  Prior to the Somerville robbery, his criminal record          included  (1) a  1980 conviction  for masked  armed robbery  of a          Bedford,  Massachusetts,  bank;  (2)  a  1982  conviction  for  a          December  1981 larceny; (3)  a 1983 conviction  for possession of          stolen  mail;  (4)   a  1992  larceny-from-the-person  conviction          stemming  from  a 1991  holdup of  a  CVS drugstore  in Yarmouth,                                         -2-          Massachusetts; and (5) a 1992 charge1 that he robbed a Mobil  gas          station and mini-mart in New  Hampshire.2  In addition, following          the  Somerville  robbery, Morrison  pled  guilty  to a  felon-in-          possession  charge.3  Morrison has a history of alcohol abuse and          depression reaching back as far as his first criminal offense.                    The presentence report ("PSR") concluded that Morrison,          by  reason of his previous convictions for the 1980 armed robbery          and the 1991  larceny from  the person, was  a career  offender.4          The PSR calculated an offense level of 32, minus three points for          acceptance of responsibility,  for a total  offense level of  29;          and a criminal history category  of VI.  A GSR of  151-188 months          resulted.  Neither party objected to the PSR findings.                    On  February  16, 1994,  Morrison  filed a  "Sentencing          Memorandum  and  Request  for  Downward  Departure"  ("sentencing          memorandum")  seeking relief  from the  GSR pursuant  to U.S.S.G.                                        ____________________          1  At the time of sentencing, the charge was pending.          2   During  the  period between  1980  and 1992,  Morrison  spent          significant time in prison.  He was initially given probation for          the  1980 masked armed  robbery conviction.   That  probation was          revoked  and Morrison  was incarcerated  from December  16, 1983,          until he was paroled on December 11, 1984.  His parole terminated          in December 1991.  He also was imprisoned from January  10, 1992,          to July 27, 1992, for the larceny-from-the-person conviction.          3   Morrison  allegedly robbed  a  convenience store  in Spokane,          Washington,  on September  11, 1992,  just three  days  after the          Somerville  robbery.  After he  was arrested, the  police found a          sawed-off  .22 caliber  Ruger  rifle and  a  box of  .22  caliber          bullets  in  his hotel  room.    He was  charged  as  a felon  in          possession.          4  See 28 U.S.C.   994(h) (defendant is career offender if, inter             ___                                                      _____          alia, convicted of crime of violence after having  been convicted          ____          of  two or more felonies which were crimes of violence); see also                                                                   ________          U.S.S.G   4B1.1 (same).                                         -3-            4A1.35 and Ch.  I, Pt.  A, intro. comment.  (4)(b)6.   Morrison                                        ____________________          5  Morrison cited to  the portion of the Guidelines section  that          states:                      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  than that                      of most defendants  in the same  criminal                      history   category  (Category   II),  and                      therefore  consider a  downward departure                      from the guidelines.          U.S.S.G.   4A1.3.          6  The Guidelines introduction notes that                        [t]he  sentencing   statute  permits  a                      court   to   depart  from   a  guideline-                      specified sentence only when it finds "an                      aggravating or mitigating circumstance of                      a  kind, or to  a degree,  not adequately                      taken   in   to   consideration  by   the                      Sentencing Commission  in formulating the                      guidelines  that  should   result  in   a                      sentence different  from that described."                      The  Commission  intends  the  sentencing                      courts to treat each guideline as carving                      out a "heartland," a set of typical cases                      embodying the conduct that each guideline                      describes.     When  a  court   finds  an                      atypical case, one to which  a particular                      guideline   linguistically   applies  but                      where conduct  significantly differs from                      the norm, the court may  consider whether                      a departure is warranted.          U.S.S.G.  Ch. I, Pt A., intro. comment. (4)(b) (quoting 18 U.S.C.            3553(b)).                                         -4-          took  the position  that U.S.S.G.    4A1.3  authorizes sentencing          courts  to consider  departures  in  limited circumstances  where          "reliable information indicates  that the  history category  does          not  adequately  reflect  the  seriousness  of   the  defendant's          criminal history."  See  U.S.S.G.   4A1.3.  Morrison  argued that                              ___          the criminal history category calculated in the PSR significantly          overrepresented his  criminal history and the  likelihood that he          would commit further crimes  because he was not a  typical career          offender.   The  First  Circuit has  not  yet determined  whether          departures are  prohibited in career offender cases.   See United                                                                 ___ ______          States v. Norflett, 922 F.2d 50, 54 n.5 (1st Cir. 1990).          ______    ________                    To establish  that the  circumstances of his  case were          atypical, Morrison argued that  the Somerville robbery (the crime          of conviction) and the  1991 larceny from the person  (his second          predicate offense) should be merged because they were symptoms of          a  "downward spiral" in his life manifested by heavy drinking and          suicidal thoughts that  began following  the loss of  his job  in          1990.   Morrison noted that  following a year  of imprisonment in          1984, he had  "become a productive  member of society,  attending          college,   working  in   Colorado,  and   then  working   at  MCI          Communications."  However, by  summer 1991, he had left  MCI, was          "deeply disturbed" and had been hospitalized on several occasions          for his drinking problems.   Morrison listed several events  that          contributed  to  his  "downward  spiral," including  two  suicide          attempts for which he was hospitalized during the summer of 1991;          two   weeks   spent   in   detoxification   in   September  1991;                                         -5-          hospitalization for depression and  alcohol problems from October          25 to November 15,  1991; the December 11,  1991, robbery of  the          Yarmouth  CVS  and  the  sentence  served  for  the   offense;  a          subsequent move  to  Canada  where he  drank  heavily  and  again          attempted suicide;  hospitalization in Nashua,  New Hampshire, on          September 2,  1992; a gas  station robbery on  September 7, 1992,          for  which charges were pending against him; and the September 8,          1992, Somerville robbery.  Morrison also set forth how, following          the  Somerville  robbery, he  obtained a  book  on how  to commit          suicide, flew to Spokane, Washington, and purchased a rifle  with          the intention of killing himself.                    Morrison attached a  psychological evaluation by Robert          S.  Ebert to his sentencing  memorandum.  In  his evaluation, Dr.          Ebert  diagnosed  Morrison  as suffering  from  "longstanding and          chronic depression."   According  to Dr. Ebert,  "Morrison's most          recent criminal activities (as well as many of those in the past)          [apparently were]  carried  out  in  the  context  of  a  chronic          depression and severe alcoholism."                    To support his contention  that the court had authority          to depart in career offender  cases, Morrison cited several other          circuit opinions addressing the issue and holding that the policy          statement found  in U.S.S.G.   4A1.3  permits downward departure.          See,  e.g., United  States v.  Bowser, 941  F.2d 1019  (10th Cir,          ___   ____  ______________     ______          1991); United States v.  Pinckney, 938 F.2d 519 (4th  Cir. 1991);                 _____________     ________          United  States v. Lawrence, 916 F.2d 553, 554-55 (9th Cir. 1990);          ______________    ________          United States v. Brown, 903 F.2d 540 (8th Cir. 1990).          _____________    _____                                         -6-                    At his  sentencing hearing,  Morrison again  argued the          facts and circumstances he contended  made him an atypical career          offender.   The government responded  by arguing  that the  facts          presented did not  amount to  an atypical case.   The  government          noted that  under  U.S.S.G     5H1.4  and 5K2.13  mental  defects          induced by alcohol or  drinking problems should not serve  as the          basis for a finding of atypicality.                    The district court refused  to grant Morrison's request          for a downward departure, stating:                        From what I  see, there were some  four                      alcohol-related    hospital    admissions                      before '91.  There were some six hospital                      admissions   related   to   alcohol   and                      depression  after  1991.   There  were  a                      number  of  criminal convictions  before,                      and then there was the series of three or                      four that occurred in the three- or four-                      month space at the end of 1992.                        I have some  difficulty seeing how this                      case  is a  case  for a  departure, as  I                      understand the criteria of Rivera.  I can                                                 ______                      tell you,  Mr. Walker,  if I felt  that I                      had the  authority  to depart,  I  would.                      And I think the  sentence I would  impose                      would be in the range of six years.  I do                      not believe that I  have the authority on                                                             __                      the facts of this case to depart.                      ______________________                        And I note, for example, in the list of                      cases you gave  me, two  of them  involve                      joint motions  by the government  and the                      defendant.   As you  well know, it  is my                      view  that the government has far greater                      authority  in  sentencing  matters  these                      days than does the Court, and this simply                      proves it.   The government isn't  moving                      to depart in this  case.  I do not  think                      the   case   fits   within  Rivera   and,                                                  ______                      accordingly, will not depart.                                   _______________          This appeal followed.                                         -7-                                          II                                          II                                THE DEPARTURE DECISION                                THE DEPARTURE DECISION                    Morrison  argues  that  the  district  court  erred  in          finding that it was precluded as a matter of law  from granting a          downward departure.  He asserts that the district court failed to          impose a shorter sentence due to its mistaken belief  that it did          not have the authority  to depart.  In support,  Morrison directs          us to  a single statement  made by  the court when  rendering its          decision: "if I  felt I had  the authority to  depart, I  would."          The government responds that the district court's decision not to          depart  does   not  reflect  an  incorrect   application  of  the          Guidelines  and  is,  therefore,  unreviewable.    The government          contends that the statement made by the district court, when read          in   context,   merely   shows  a   "generalized   expression  of          apprehension  regarding  the  Guidelines, not  specific  judicial          findings  regarding the  authority to  depart in  this particular          case."  We agree.                    The  Sentencing Reform Act  specifically defines when a          defendant can seek appellate  review of a sentence.   A defendant          may appeal  a  sentence if  it  was imposed  as  a result  of  an          incorrect application of the Guidelines.  18 U.S.C.   3742(a)(2).          "[A]   refusal  to   depart  cannot   constitute  an   `incorrect          application'  of the Guidelines."   United States  v. Tucker, 892                                              _____________     ______          F.2d 8, 10 (1st Cir. 1989).   Consequently, no appeal lies from a          discretionary refusal to  depart.   United States  v. Pierro,  32                                              _____________     ______          F.3d 611, 619 (1st  Cir. 1994) (citing United States  v. Tardiff,                                                 _____________     _______                                         -8-          969 F.2d 1283, 1290 (1st Cir. 1992); United States v. Amparo, 961                                               _____________    ______          F.2d 288, 293 (1st  Cir.) cert. denied, 113  S. Ct. 224,  (1992);                                    ____________          United  States  v. Hilton,  946 F.2d  955,  957 (1st  Cir. 1991);          ______________     ______          United  States v.  Romolo,  937 F.2d  20,  22 (1st  Cir.  1991)).          ______________     ______          Appellate jurisdiction  does attach, however,  where the decision          not  to depart is based  on the sentencing  court's assessment of          its lack of authority or power to depart.  Id.;  Amparo, 961 F.2d                                                     ___   ______          at 292.                    The difference  between the rule and  the exception has          been described as follows:                      If    the    judge   sets    differential                      factfinding  and evaluative  judgments to                      one  side,  and  says, in  effect,  "this                      circumstance of which you speak,  even if                      it  exists, does not constitute a legally                      sufficient basis for departure," then the                      correctness   of  that   quintessentially                      legal  determination  may  be  tested  on                      appeal.    But  if  the  judge  says,  in                      effect, either that "this circumstance of                      which  you speak  has not  been shown  to                      exist in this  case," or,  alternatively,                      that  "while  this circumstance  of which                      you   speak   might   exist   and   might                      constitute a legally cognizable basis for                      a  departure in  a theoretical  sense, it                      does  not  render  this  particular  case                      sufficiently    unusual     to    warrant                      departing," then, in  either such  event,                      no appeal lies.          Pierro, 32  F.3d at 619.   Thus, an appeal lies  if the departure          ______          decision is based on  an assessment that the sentencing  court is          powerless  to depart on the grounds alleged by the proponent, but                                      _______          not if  the court simply  declines to exercise  its discretionary          power to depart.                                         -9-                    When  determining whether  the sentencing  court merely          refused  to  exercise  its  discretionary  power  to  depart,  we          consider the  totality of the  record and the  sentencing court's          actions as reflected therein.   See United States v.  LeBlanc, 24                                          ___ _____________     _______          F.3d 340,  348 (1st Cir.), cert.  denied, 115 S. Ct.  250 (1994).                                     _____________          We do  not consider any  single statement  in a  vacuum.   United                                                                     ______          States v. DeCosta, 37 F.3d 5, 8 (1st Cir. 1994);  see LeBlanc, 24          ______    _______                                 ___ _______          F.3d at  348.  Rather, it  is necessary to view  the statement in          the context of  the hearing as a whole and  the court's action as          reflected by the record.  See DeCosta, 37 F.3d at 8.                                    ___ _______                    Prior to sentencing, a court considering departure must          ask:                      "1)     What   features  of   this  case,                      potentially,   take    it   outside   the                      Guidelines' 'heartland' and make of  it a                      special, or unusual, case?                      2)    Has  the   [Sentencing]  Commission                      forbidden   departures  based   on  those                      features?                      3)     If   not,  has   the  [Sentencing]                      Commission encouraged departures based on                      those features?                      4)     If   not,  has   the  [Sentencing]                      Commission  discouraged departures  based                      on those features?"          United States  v. De Masi, No.  92-2062, slip. op. at  41-42 (1st          _____________     _______          Cir. Oct 26,  1994) (quoting  United States v.  Rivera, 994  F.2d                                        _____________     ______          942, 949 (1st Cir. 1993)).  "A court's subsequent analysis varies          depending on  the category  in which  the feature  justifying the          departure falls."    Id. at 42.  If the reasons presented for the                               ___          departure  fall  into  the discouraged  category,  those  reasons                                         -10-          generally   will  not  suffice  to  take  the  case  out  of  the          "heartland."  Rivera, 994 F.2d at 949.  The sentencing court must                        ______          look  to  the Guidelines  to determine  if  a certain  feature is          discouraged.  De Masi, No. 92-2062, slip. op. at 43.                        _______                    Morrison  argued to the  district court  that he  is an          atypical  career  offender  because  he  was  suffering  from  an          extended period of  severe depression  and alcohol  abuse at  the          time  the  second  predicate  offense  and  crime  of  conviction          occurred.  Therefore, according to  Morrison, the two crimes were          sufficiently  connected or  related to each  other to  qualify as          part of the "same course of conduct."  See U.S.S.G.   1B1.3, app.                                                 ___          note  9(b).7  The record  reflects that the  district court found                                        ____________________          7  U.S.S.G.   1B1.3(b) states:                      Offenses that do not qualify as part of a                      common  scheme  or  plan may  nonetheless                      qualify  as part  of  the same  course of                      conduct   if    they   are   sufficiently                      connected  or related to each other as to                      warrant the conclusion that they are part                      of  a single  episode, spree,  or ongoing                      series  of offenses.    Factors that  are                      appropriate   to  the   determination  of                      whether    offenses    are   sufficiently                      connected or related to  each other to be                      considered  as part of the same course of                      conduct include the degree  of similarity                      of    the   offenses,    the   regularity                      (repetitions)  of  the offenses,  and the                      time interval between the offenses. . . .                      The nature of the  offenses may also be a                      relevant consideration.          U.S.S.G.   1B1.3(b), comment. 9(b).  We have previously held that          robberies occurring  on different  days and at  different places,          linked only by drug dependency,  are not part of the same  course          of conduct.   United States v.  Williams, 891 F.2d 962,  966 (1st                        _____________     ________          Cir.  1989).    "[The  Guidelines]  specifically  stipulated that          robbery  was to  be regarded  as a  crime oriented  toward single                                         -11-          that the  features  of the  case  did not  make  it "special"  or          "unusual" and, therefore, never  reached the questions of whether          the offenses could be merged and whether courts have authority to          depart  in career offender cases.   Several factors  lead to this          conclusion.                    First,  in  announcing  its  decision  the  court  made          repeated references to Rivera that indicated its familiarity with                                 ______          that decision.  Rivera sets forth the power of a sentencing court                          ______          to  depart from  the GSR  where circumstances  warrant departure.          See 994 F.2d at 949.  Moreover, Rivera makes clear that it is the          ___                             ______          role of  the sentencing  court to  make determinations  about the          "ordinariness" or  "unusualness" of a  particular case.   Id.  at                                                                    ___          947.  We have  previously noted that a sentencing  court's stated          familiarity with Rivera is  an indicium that the court  was aware                           ______          of its authority to depart downwards.  United States v. O'Connor,                                                 _____________    ________          28 F.3d 218, 222 (1st Cir. 1994).                    Second, at the sentencing hearing  the government never          argued that the court  was without authority to depart.   Rather,          it was the  government's contention  that the facts  of the  case          presented no basis for exercising that authority.  The government          outlined the  reasons why  Morrison's situation was  not atypical          and did not take him outside the heartland.                                        ____________________          episodes of criminal behavior, and therefore not to be treated as          a continuing offense."  Id. (citing U.S.S.G. Ch. 3, Pt. D, intro.                                  ___          comment.).   Because we conclude  that the district  court made a          discretionary finding of no atypicality, there is no  occasion to          review  whether  the  rule  enunciated  in  Williams  applies  to                                                      ________          Morrison's circumstances.                                         -12-                    Third, the court stated:  "I do not believe that I have          the authority on  the facts  of this case  to depart."  (emphasis                        __  ___ _____  __ ____ ____          added).   This statement, coming on the heels of the government's          argument that Morrison's situation  was not atypical, and coupled          with the court's references to  Rivera, indicates that the  court                                          ______          determined that the particular circumstances of this case did not                                                          ____ ____          warrant departure under the criteria outlined in Rivera.  In this                                                           ______          vein,  the court pointedly used  the phrase I  "will not depart,"          clearly evidencing the discretionary nature of its decision.                    Based on the  facts presented to  it in the  sentencing          memorandum  and at  the  sentencing hearing,  the district  court          found  that  Morrison's depression  and  alcohol  abuse, and  the          "downward  spiral"  resulting   therefrom,  did  not   present  a          situation  sufficiently  atypical  from   that  of  most   career          offenders to permit characterization  as outside the heartland of          career offender cases.   The  court simply was  not persuaded  to          depart from the Guidelines.  Nor is there anything  in the record          to indicate that the court ever reached the question of whether a          sentencing court  has the authority to depart  downward in career          offender cases where the court finds that the defendant is  not a          typical career offender.                    Even assuming, however, that  the statement seized upon          by the defendant was considered  ambiguous, this alone would  not          suffice to make the  decision not to depart  from the GSR  either          appealable  or  appropriate for  remand.   See  United  States v.                                                     ___  ______________          Romero,  32 F.3d 641, 654  (1st Cir. 1994)  (noting that although          ______                                         -13-          the  sentencing court's language was "not a model of clarity," it          was  sufficiently clear  from  record that  court understood  its          ability  to   depart  but   made  a  factual   and  discretionary          determination that  departure  was not  warranted).    Difficulty          commonly arises where a sentencing court uses  terse phrases that          it  cannot  or  is without  authority  to  depart  from the  GSR.          DeCosta, 37 F.3d at 8.  While a sentencing court  is not required          _______          to state its reasons for refusing to depart, failure to do so may          result  in a  perceived  ambiguity.    See id.    Thus,  we  have                                                 ___ ___          suggested that a sentencing court state, where appropriate, "that          it  has considered the mitigating factors urged but does not find          them sufficiently unusual to  warrant a departure in the  case at          hand."  Id.8                  ___                    If a  sentencing court  neglects to use  such language,          however,  the sentencing  decision  is not  necessarily ripe  for          remand  or   review.     Sentencing  courts  have   had  abundant          opportunity  to  become  experienced  with   the  Guidelines  and          familiar with  their  authority to  make discretionary  decisions          regarding whether  to depart.  See  DeCosta, 37 F.3d at  8 ("if a                                         ___  _______          district  court  desired  to   depart  but  thought  this  course          forbidden by  explicit guideline  language, one would  expect the          court  to  cast its  refusal in  these  terms"); see  also United                                                           _________ ______          States v. Rodr guez, 30  F.3d 1318, 1319 (10th Cir.  1994) ("[W]e          ______    _________          no longer are willing to assume that a judge's ambiguous language                                        ____________________          8   Due to the  recurrent nature of  this problem, we  once again          strongly  suggest that  sentencing courts  use this  language, or          language of identical import, to avoid ambiguities.                                         -14-          means  that the judge erroneously concluded that he or she lacked          authority to downward depart.").                    There are at least two credible appellate approaches to          a  ruling wherein the sentencing  court has failed  to state with          clarity   its   determination   that   a   departure   would   be          impermissible, as a matter of law, on the grounds  asserted.  The          reviewing  court may remand for a clear ruling, see, e.g., United                                                          ___  ____  ______          States v.  Mummert, 34 F.3d 201,  205 (3d Cir. 1994),  or dismiss          ______     _______          the  appeal in  reliance on  a presumption  that ambiguity  alone          affords an insufficient basis  for concluding that the sentencing          court misapprehended its departure  authority.  See Rodr guez, 30                                                          ___ _________          F.3d at 1319; cf. DeCosta, 37 F.3d at 8.                        __  _______                    Notwithstanding   the   problematic  language   in  the          district  court's ruling  in the  instant case,  however, neither          option is warranted  here.   Rather, viewed in  harmony with  its          context, the departure reflects no misapprehension on the part of          the  district court  as to  its departure  power, but  simply its          decision not to exercise that power in the present case.                                          II                                          II                                      CONCLUSION                                      CONCLUSION                    Because  we  are  without jurisdiction  to  review  the                    Because  we  are  without jurisdiction  to  review  the                    _______________________________________________________          departure decision, the appeal is dismissed.          departure decision, the appeal is dismissed          ___________________________________________                                         -15-
