
USCA1 Opinion

	




          October 26, 1995      [Not for Publication]                                [Not for Publication]                            United States Court of Appeals                            United States Court of Appeals                                For the First Circuit                                For the First Circuit                                _____________________          No. 94-2136                                    UNITED STATES,                                      Appellee,                                          v.                                   JOHN DEGRANDIS,                                Defendant, Appellant.                               _____________________                       APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. Joseph L. Tauro, U.S. District Judge]                                            ___________________                                _____________________                                        Before                           Selya and Stahl, Circuit Judges,                                            _______________                            and Gorton*,  District Judge.                                          _______________                                _____________________               John C. Doherty for appellant.               _______________               Jeanne M. Kempthorne, Assistant United States Attorney, with               ____________________          whom  Donald K. Stern, United  States Attorney, was  on brief for                _______________          the United States.                                _____________________                                _____________________          ____________________          *Of the District of Massachusetts, sitting by designation.                      Per  Curiam.   In September  of 1994,  the district                      ___________            court  sentenced  John DeGrandis  to  a  prison  term of  151            months1  and three  years of  supervised release  for a  bank            robbery he committed in January 1992.  DeGrandis now  appeals            his sentence, challenging the district court's ruling that it            lacked authority  under the  Sentencing Guidelines  to depart            downward from  the prescribed  sentencing range based  on his            lack of youthful guidance.2                      Under  the  Guidelines in  effect  at  the time  of            sentencing, see U.S.S.G.   1B1.11(a), "lack  of guidance as a                        ___            youth  and similar  circumstances indicating  a disadvantaged            upbringing"  were forbidden  grounds for  downward departure.            U.S.S.G.    5H1.12.     (added  by  amendment,   Nov.  1992).                                            ____________________            1.  DeGrandis pled guilty without a plea agreement.  Applying            the  Guidelines  in  force at  the  time  of sentencing,  the            district  court sentenced  DeGrandis  to the  minimum of  the            Guideline  range based on an adjusted offense level of 29 and            a criminal  history category  of VI,  pursuant to the  career            offender  provisions  of  U.S.S.G.    4B1.1.     Pursuant  to            U.S.S.G.    3E1.1(b), the  court granted  DeGrandis a  three-            level reduction for acceptance of responsibility.             2.  At   his  sentencing  hearing,   DeGrandis  advanced  his            childhood physical  abuse as a factor  supporting a departure            for  lack of youthful guidance.  Now, in his appellate brief,            he seems to suggest that childhood abuse is a separate ground            for departure, distinct  from lack of youthful guidance.  But            he  does not make that clear, he makes no separate arguments,            and  he  points  to  no precedent  treating  childhood  abuse            separately.   We,  therefore,  consider  childhood  abuse  as            subsumed in his lack  of youthful guidance arguments, but  we            would reach the  same result if we  considered it separately.            See  United States  v. Zannino,  895 F.2d  1, 17  (1st Cir.),            ___  _____________     _______            cert.  denied   494  U.S.  1082  (1980)   (claims  raised  in            _____  ______            conclusory fashion, unsupported  by developed  argumentation,            are deemed waived).                                         -2-                                          2            DeGrandis   argues,   however,  that     5H1.12   effected  a            substantive  change  to  the  Guidelines  subsequent  to  his            offense, and therefore its application to him was a violation            of the Ex Post Facto Clause of the Constitution.   See United                                                               ___ ______            States v. Clark, 8 F.3d 839, 844-45 (D.C. Cir. 1993) (holding            ______    _____            that  the  addition  of    5H1.12 was  a  substantive  change            implicating Ex  Post Facto  Clause); accord United  States v.                                                 ______ ______________            Johns, 5 F.3d  1267, 1272  (9th Cir. 1993);  see also  United            _____                                        ___ ____  ______            States  v. Prezioso, 989 F.2d 52, 53 (1st Cir. 1993) (holding            ______     ________            that Guideline amendments that are "substantive" rather  than            "clarifying" implicate Ex Post Facto Clause).                      We need  not reach DeGrandis' ex  post facto claim.            Assuming  but  not deciding  that  (1)  the district  court's            decision not to depart downward was based on a belief that it            lacked legal  authority to depart  based on lack  of youthful            guidance and (2) the district court, contrary to that belief,            did  have  such  authority,3  we hold  nonetheless  that  the            factual record does not support a downward departure for lack            of youthful guidance.                      This  circuit  has  not  decided  whether  lack  of            youthful  guidance was  a  permissible  ground for  departure                                            ____________________            3.  In order to assume  that such authority existed, we  must            further  assume   that  lack  of  youthful   guidance  was  a            permissible  ground  for departure  at the  time of  the bank            robbery, and therefore the application of Guideline   5H1.12,            which was  in effect at the time of sentencing but not at the            time of the offense, would violate the Ex Post Facto Clause.                                         -3-                                          3            before   5H1.12 was added to the Guidelines in 1992; only the            Ninth and  District of  Columbia Circuits have  approved such            departures.   See  United States  v. Clark,  8 F.3d  839, 845                          ___  _____________     _____            (D.C.  Cir. 1993); United States v. Anders, 956 F.2d 907, 913                               _____________    ______            (9th Cir. 1992), cert. denied,  113 S.Ct. 1592 (1993); United                             _____ ______                          ______            States v. Floyd, 945 F.2d 1096, 1099  (9th Cir. 1991).  Floyd            ______    _____                                         _____            and  Anders were  decided  before the  addition of  Guideline                 ______              5H1.12.  The District of  Columbia and Ninth Circuits  have            upheld departures  for lack  of youthful guidance  even after              5H1.12 became effective,  applying the pre-1992  Guidelines            to avoid  ex post facto problems.  Clark, 8 F.3d at 845 (D.C.                                               _____            Cir. 1993); Johns, 5 F.3d at 1272 (9th Cir. 1993).                        _____                      The Ninth Circuit has  approved departures for lack            of  youthful guidance  based  on evidence  of abandonment  by            parents,  lack of  education,  and imprisonment  as a  youth,            provided  that there is a nexus between those factors and the            crimes for which the defendant  is being sentenced.   Anders,                                                                  ______            956 F.2d  at 913; Floyd, 945  F.2d at 1099.   The District of                              _____            Columbia Circuit relied on Anders and Floyd in holding that a                                       ______     _____            combination of  childhood exposure  to domestic  violence and            lack  of  youthful  guidance  was a  permissible  ground  for            departure.   Clark,  8 F.3d  at 845.   Cf.  United States  v.                         _____                     ___  _____________            Haynes,  985 F.2d 65, 68-69 (2d Cir. 1993) (rejecting lack of            ______            youthful guidance  as grounds for departure  and stating that            defendant failed  in  any  event to  make  out  its  elements                                         -4-                                          4            (abandonment by parents, lack of  education, and imprisonment            as a minor), citing Floyd,  945 F.2d at 1099).   Cognizant of                                _____            these holdings from other  circuits, we shall assume arguendo                                                                 ________            that  lack of  youthful  guidance  was,  in January  1992,  a            "special  circumstance[]  .  .  .  of  the  `kind'  that  the            Guidelines, in principle, permit[ted] the sentencing court to            consider."  United States  v. Rivera, 994 F.2d 942,  951 (1st                        _____________     ______            Cir. 1993).                      In  Rivera, this  court  explained the  appropriate                          ______            legal analysis for  departures from the  Guidelines.  Id.  at                                                                  __            946-52.  In assessing  circumstances "where the Guidelines do            not expressly forbid, encourage, or discourage departures . .            .,  the district court will  decide whether (and,  if so, how            much to  depart) by examining  the `unusual' nature  of these            circumstances."  Id. at 949.  Put differently, "the law tells                             __            the judge,  considering  departure, to  ask basically,  'Does            this   case  fall   within   the  "heartland"   [of   typical            circumstances]  or  is it  an unusual  case?'"   Id.  at 948.                                                             __            Rivera directs  the appellate  court to "review  the district            ______            court's  determination of  `unusualness' with  full awareness            of,  and respect  for, the  trier's superior  `feel' for  the            case."  Id. at 952.  We apply this framework for review here.                    __                      At the  conclusion of the  sentencing hearing,  the            district judge stated that, if he had the authority to depart                                         -5-                                          5            for lack of youthful guidance, he would have imposed a prison            sentence  of 90 months instead  of 151 months.   The district            judge, however, made no  specific factual findings to support            such a departure, other than to implicitly adopt the facts in            the  presentence report  and  the  mental  health  evaluation            report.   The comments of the district judge are not entirely            clear.  At  one point  in the sentencing  hearing, he  stated            that the mental health evaluation report did  not support the                                                          ___            requested departure for lack of youthful guidance; at a later            point, he stated that the report  did support such departure.            Although  the basis for the district court's decision is less            than  certain,   we  have  nonetheless  examined  the  entire            sentencing record with the  "respect for the trier's superior            `feel'" called for in Rivera.  Id.                                  ______   __                      Unfortunately for DeGrandis,  the circumstances  of            his youth are  not unusual among criminal offenders, and thus            do not justify  the departure he seeks.   Although he had  an            alcoholic father  who was  physically  and verbally  abusive,            that abuse was directed  primarily toward DeGrandis'  mother.            Nor was DeGrandis  abandoned by his parents in  his formative            years.   After  his parents  separated during  his fourteenth            year, he continued to  live with his mother in  South Boston,            his home  at the time  of his arrest.   After the separation,            DeGrandis maintained  some contact with his  father, who also            lived in South  Boston.   DeGrandis did not  have an  unusual                                         -6-                                          6            lack  of  education,  having done  well  in  school until  he            dropped out  in  the ninth  grade,  apparently because  of  a            distaste  for  forced busing.    While  in state  prison  for            earlier offenses, he earned a General Equivalency Diploma and            took  college  classes.   DeGrandis'  entanglements  with the            criminal  justice system did not begin  until he was nineteen            years old; he had no juvenile adjudications and therefore was            never imprisoned as  a youth.   Although the  suicide of  his            brother in 1988 was no doubt a traumatic event, DeGrandis was            23  years old  at the  time of the  unfortunate event  and it            therefore does  not reflect  on  his youthful  circumstances.            Contrary to DeGrandis' assertion,  these facts do not warrant            a departure for lack of youthful guidance.4                      Our   conclusion  is  supported   by  the  clinical            findings  in  the  mental  health  evaluation  report,  which            concluded  that the "impact on DeGrandis of being raised in a            dysfunctional family due to his parents' continuous  fighting            and subsequent separation" was that DeGrandis "developed some            dysfunctional methods  of dealing with stress,"  but that "he            could  have decided to change aspects of his life and adopted            a different lifestyle."  The Guidelines in effect at the time            of his offense  and at  the time of  his sentencing  provided            that  mental  and  emotional  conditions  are not  ordinarily                                            ____________________            4.  Once  again,  we assume  but do  not  decide that  such a            departure was  permissible in  an appropriate case  where the            offense occurred before U.S.S.G.   5H1.12 became effective.                                         -7-                                          7            relevant factors for  departure.  U.S.S.G.    5H1.3.  To  the            extent that DeGrandis was mentally or emotionally impacted by            his difficult upbringing, we do not find Degrandis' condition            extraordinary.  See Rivera, 994 F.2d at 948.  It  does appear                            ___ ______            from  the  record  that  drug addiction  has  been  the  most            powerful demon with which DeGrandis has battled.  If there is            a nexus between his situation as a youth and his crimes, that            nexus is drug addiction.   The need for money to support that            addiction is the most likely motivation for his crimes.  Drug            abuse, however,  was a forbidden grounds  for departure under            the Guidelines  in effect at the  time of his offense  and at            the time of his sentencing.  U.S.S.G.   5H1.4.                      Thus, we find that  the circumstances of DeGrandis'            youth do not take  him outside the "heartland" of  the career            offender guideline.   To the  extent that the  district judge            made  a finding that  DeGrandis' background  was sufficiently            unusual to justify a departure for lack of youthful guidance,            that  finding  was   erroneous  under  Rivera's  "respectful"                                                   ______            standard  of  review.     994  F.2d  at  952.     Remand  for            resentencing  would therefore be "pointless."  See id. at 953                                                           ___ __            ("we should not (and would not) order a new proceeding were .            .  .  there no  significant  possibility that  the  facts and            circumstances would  permit  the district  court lawfully  to            order a departure").                                         -8-                                          8                      Accordingly, the sentence  imposed on DeGrandis  by            the district judge is affirmed.                                  ________                                         -9-                                          9
