                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-10-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-2495




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"USA v. Crumlich" (2006). 2006 Decisions. Paper 768.
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                                                                 NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT

                                        No: 05-2495

                            UNITED STATES OF AMERICA

                                                   v.

                                 REBECCA CRUMLICH,

                                             Appellant

                        Appeal from the United States District Court
                          for the Middle District of Pennsylvania
                                   (Crim. No. 04-226-03)
                         District Court: Hon. William W. Caldwell

                     Submitted Pursuant to Third Circuit LAR 34.1(a)
                                     May 18, 2006

           Before: SCIRICA, and McKEE, and STAPLETON, Circuit Judges.

                                   (Filed: July 10, 2006)

McKee, Circuit Judge.

       Rebecca Crumlich appeals the sentence that was imposed following her guilty

plea. She claims that the district court erroneously believed that it had no authority to

consider her request for a downward departure based upon extenuating family

circumstances. For the reasons that follow, we will vacate the sentence and remand for

resentencing.

                                              I.



                                              1
       Inasmuch as we write primarily for the parties, we need not reiterate the factual or

procedural background of this case except insofar as may be helpful to our brief

discussion.

       Crumlich pled guilty to violating 21 U.S.C. §843 and 18 U.S.C. §2. The

maximum sentence that could be imposed pursuant to her plea agreement was a period of

incarceration of 48 months. She subsequently asked the court for a downward departure

based upon extenuating family circumstances, and the government moved for a

downward departure based upon her substantial assistance. The reduction urged by the

government would have resulted in a sentence of 38 months.

       The court denied Ms. Crumlich’s motion for downward departure, but did grant a

downward departure for substantial assistance in response to the government’s motion.

In response to Crumlich’s argument that the court should further reduce the sentence

based upon her extenuating personal circumstances, the court stated: in part, that “judges

just don’t have the power to do what you would like me to do. We have the federal law,

the federal sentencing guidelines, and drug trafficking is probably an extremely serious

charge...” App. at 98A. Thereafter the court sentenced Crumlich to a term of

imprisonment of 32 months followed by supervised release, a fine and a special

assessment. This appeal followed.

                                             II

       In essence, Crumlich claims that the court mistakenly thought that it was without

authority to grant a downward departure based upon her personal circumstances, and it

                                             2
therefore did not give “meaningful consideration” to the relevant factors of 18 U.S.C.

§3553(a). See United States v. Cooper, 437 F.3d 324, 329 (3d. Cir. 2006); United States

v. Cunningham, 429 F.3d 673, 679 (7th Cir. 2005). Crumlich believes that the trial court

did not reasonably exercise it’s discretion in applying the sentencing guidelines to the

circumstances of her case. Id. at 330.

       Crumlich focuses her arguments upon the aforementioned comment of the district

court and additional comments suggesting that the court believed it did not have the

authority to grant an additional departure for her extraordinary family circumstances. See

App. at 98A. She argues such a departure was appropriate because she explained that

“[s]he is the sole care giver and custodian for her 9 year old daughter, whose father, a

convicted drug dealer is likely to obtain custody . . . because of her mother’s conviction.”

She also claims she is “the primary care giver for [her] 84 year old grandmother, . . . who

is dependent on [Crumlich] for her everyday care and support,” and she stresses her

minimal role “in the underlying conspiracy,” and the fact that it has been “at least 11

years . . . since the last ‘serious’ offenses [she] committed in Florida.” Appellant’s Br. at

11.

       The district court commented on the applicable policy statement in the guidelines

and the fact that “family ties and responsibilities are not ordinarily relevant to

determining whether a departure may be warranted.” App. 96A. The court then said, “I

just don’t know if that’s a legitimate area for a departure or not.” Id. In responding to

Crumlich’s request for a downward departure, the court also explained: “judges don’t

                                               3
have the power to do what you would like me to do. We have the federal law, the federal

sentencing guidelines, and drug trafficking is probably an extremely serious charge, and

there are consequences. . . . I’m going to go slightly below the government’s

recommendation, but I have no choice in the matter.” Id., 98A-99A (emphasis added).

       The government argues that the court’s remarks were nothing more than an

explanation of why the court was not going to exercise its discretion in favor of granting

the requested departure. The government insists that “the district court in the present case

fully understood its discretion to grant or deny Crumlich’s Motion for Downward

Departure.” Appellee’s Br. at 14. The government also reminds us that Crumlich’s

sentencing occurred approximately four months after the Supreme Court decided United

States v Booker, 543 U.S. 220 (2005), and “it is doubtful whether, even the day after

Booker was decided, a single federal prosecutor or federal judge could have been still

operating under the misapprehension that . . . the Guidelines [were] mandatory.”

Appellee’s Br. at 18.

       Although we are not unsympathetic to the logic of the government’s argument, we

can not so readily ignore the district court’s own pronouncement that it did not have the

authority to grant the departure for extraordinary family circumstances Crumlich

requested. If that is not what the court meant, the best way to clarify the issue is to

remand so the district court can clarify its remarks. If that is what the court meant, a

remand is clearly required. In either event, we don’t have to guess about whether the

court understood that it retained the discretion to grant the downward departure for

                                              4
extraordinary family circumstances if it believed that Crumlich’s circumstances “place

[her] outside the ordinary.” United States v. Dominguez, 296 F.3d 192, 195 (3d Cir.

2002).

         Dominguez, was decided before Booker. Yet, we there explained that even under

what was assumed to be a mandatory regime of sentencing guidelines, district courts

retained the discretion to determine “[w]hether a particular case is appropriate for

downward departure [based upon] its lying ‘outside the heartland.” Id., at 195. We cited

United States v. Sweeting, 213 F.3d 95, (3d Cir. 2000) wherein we had explained when

family circumstances could support a downward departure in the proper exercise of the

sentencing court’s discretion. We then vacated the sentence that had been imposed and

remanded to the district court for resentencing in order to ensure that the district court had

properly considered whether the defendant’s circumstances merited a downward

departure, and if they did, whether the court would exercise its discretion to depart

downward.

         Given the ambiguity on this record, we believe that is also the most appropriate

resolution of this appeal. Accordingly, we will vacate the sentence that was imposed, and

remand for resentencing consistent with this opinion and our discussion in Dominguez.




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