Appeals from the United States District Court for the Eastern District of North Carolina, at Fayetteville.
Malcolm J. Howard, District Judge. (CR-94-36)
Before WILKINSON, Chief Judge; RUSSELL, WIDENER, HALL, MURNAGHAN, ERVIN, WILKINS, NIEMEYER, HAMILTON, LUTTIG, WILLIAMS, MICHAEL, and MOTZ, Circuit Judges; and PHILLIPS, Senior Circuit Judge, sitting en banc.
Vacated and remanded for resentencing by published opinion.
Judge Wilkins wrote the majority opinion, in which Chief Judge Wilkinson and Judges Russell, Widener, Hall, Murnaghan, Ervin, Niemeyer, Hamilton, Luttig, Williams, Michael, Motz, and Phillips join.
Judge Murnaghan wrote a separate opinion.
Judge Wilkins wrote a separate opinion, in which Chief Judge Wilkinson and Judges Russell, Niemeyer, Luttig, and Williams join.
Anthony D. Barber and David L. Hodge, Jr. appeal the sentences imposed upon them by the district court following their pleas of guilty to second-degree murder. See 18 U.S.C.A.Section(s) 1111(a) (West Supp. 1997). They assert that the district court erred in departing upward from their applicable guideline ranges based upon its conclusion that various circumstances -- the fact that the murder was premeditated, that it occurred during a robbery, and that it was committed with a dangerous weapon, a firearm -- removed the case from the heartland of situations encompassed within the second-degree murder guideline. See U.S. Sentencing Guidelines Manual Section(s) 2A1.2 (1994). Because we cannot conclude on the present record that the district court acted within its discretion in departing upward based on the discharge of a firearm, and because we are unable to conclude that the district court would have imposed the same sentence in the absence of this factor, we vacate the sentence imposed and remand for resentencing.
Terrell Fields was murdered on April 14, 1994 by two shotgun blasts to the back of his head; his body was discovered the following day in a wooded area on federal lands at Fort Bragg, North Carolina. Some of the particulars surrounding the murder are unclear because accounts of the murder provided by Barber and Hodge sharply conflict concerning various points. The relevant facts for our purposes, however, are not disputed.
In the early part of 1994, Barber began to chauffeur Fields. According to Barber, Fields was involved in illicit drug distribution activities in North Carolina, and when Barber expressed his desire to end their relationship, Fields threatened Barber and his family. Fear of Fields, Barber asserts, led him to plan Fields' murder.
On April 14, 1994, Fields met Barber and Hodge at a local gasoline station in response to Barber's page, and the three men departed in Barber's automobile. Later that evening, Hodge shot Fields in the back of the head at point-blank range with a .12 gauge shotgun that Barber previously had purchased. After the second blast, Barber robbed Fields of approximately $50 in cash and divided this money with Hodge. Soon afterward, Barber and Hodge were arrested and charged with conspiracy to commit murder, see 18 U.S.C.A. Section(s) 1117 (West 1984); felony murder, see 18 U.S.C.A.Section(s) 1111(a); use of a firearm in connection with those crimes, see 18 U.S.C.A. Section(s) 924(c)(1) (West Supp. 1997); and robbery, see 18 U.S.C.A. Section(s) 2111 (West 1984). On the day of his arrest, Hodge provided a statement in which he confessed to firing the first shot, but claimed that the shooting was an accident and that Barber had fired the second shot. Hodge also confessed to sharing in the proceeds of the robbery.
The Government entered into plea agreements under which Barber and Hodge agreed, inter alia, to plead guilty to second-degree murder; the Government agreed to dismiss the remaining charges. The plea agreements did not specify the sentence to be imposed, and Barber and Hodge acknowledged in the agreements that the district court might impose a maximum sentence of life imprisonment. The agreements further provided that Barber and Hodge would completely and truthfully disclose to the Government all conduct relevant to the indictment, but that all self-incriminating information supplied pursuant to the plea agreement would not be used in determining their applicable guideline ranges. See U.S.S.G.Section(s) 1B1.8(a). The district court accepted their pleas.
At sentencing -- applying U.S.S.G. Section(s) 2A1.2, the guideline applicable to second-degree murder -- the district court calculated Barber's and Hodge's base offense levels as 33, but reduced this by three levels for acceptance of responsibility, see U.S.S.G. Section(s) 3E1.1. Combining this adjusted offense level of 30 with their Criminal History Categories of I resulted in applicable guideline ranges of 97-121 months imprisonment. The district court, however, adopted the recommendation of the presentence report that upward departures from these guideline ranges were appropriate. See U.S.S.G. Section(s) 5K2.0, p.s. (Grounds for Departure), 5K2.6, p.s. (Weapons and Dangerous Instrumentalities). With respect to Hodge, the court departed because Section(s) 2A1.2 did not take into account: (1) a premeditated murder; (2) the use of a dangerous weapon; and (3) the commission of a robbery. The court relied on the same bases with respect to Barber -- except for premeditation because the statement providing the evidence to support the finding of premeditation was provided pursuant to Barber's cooperation agreement and this information thus was protected as to him. The district court departed upward seven offense levels, resulting in a guideline range of 210-262 months, and imposed a sentence of 210 months imprisonment on each defendant. Barber and Hodge appeal from these sentences. *fn1
Congress has instructed that a district court must impose a sentence within the range that results from the proper application of the guidelines "unless the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described." 18 U.S.C.A. Section(s) 3553(b) (West Supp. 1997). The Supreme Court recently established the analysis courts must employ in determining whether a potential basis for departure was"`adequately taken into consideration by the Sentencing Commission in formulating the guidelines.'" Koon v. United States, 116 S. Ct. 2035, 2044 (1996) (quoting 18 U.S.C.A. Section(s) 3553(b)).
In Koon, the Court explained that when analyzing whether a potential basis for departure was adequately considered by the Commission in formulating the guidelines, a sentencing court must focus on whether the factor is taken into account by the guidelines, policy statements, or commentary and whether it is encompassed within the heartland of situations to which the applicable guideline was intended to apply. See id. at 2044; see also U.S.S.G. Ch. 1, Pt. A, intro. comment. 4(b). The Koon Court emphasized that it is essential to recognize that "`[t]he Commission intend[ed] the sentencing courts to treat each guideline as carving out a "heartland," a set of typical cases embodying the conduct that each guideline describes'" and to consider as potential bases for departure factors that take the case outside the heartland of the applicable guideline. Koon, 116 S. Ct. at 2044 (quoting U.S.S.G. Ch. 1, Pt. A, intro. comment. 4(b)). Thus, the Commission has indicated that it adequately considered circumstances within the heartland of conduct encompassed by the guidelines and did not consider conduct falling outside the heartland. Accordingly, the crucial inquiry is whether the individual facts that the district court is considering are taken into account in the heartland of situations encompassed within the applicable guideline.
In order to ascertain whether a factor under consideration is an appropriate basis for departure, the Koon Court instructed that after identifying a potential basis for departure, a sentencing court should determine whether that factor was forbidden, encouraged, discouraged, or unmentioned by the Commission as a basis for departure. See id. at 2045. Which of these categories a factor falls into is resolved by reference to the guidelines, policy statements, and commentary. See id.; see also U.S.S.G. Ch. 1, Pt. A, intro. comment. 4(b). Whether, and under what circumstances, a sentencing court properly may depart on the basis of any given factor is measured in large part by the category into which the factor falls. See Koon, 116 S. Ct. at 2045.
If a factor is one on which the Commission has forbidden reliance -- e.g., drug or alcohol dependence or abuse (U.S.S.G. Section(s) 5H1.4, p.s.); race, sex, national origin, creed, religion, or socio-economic status (U.S.S.G. Section(s) 5H1.10, p.s.); lack of guidance as a youth or similar circumstances indicating a disadvantaged upbringing (U.S.S.G. Section(s) 5H1.12, p.s.); personal financial difficulties or economic pressure on a trade or business (U.S.S.G. Section(s) 5K2.12, p.s.) -- a departure premised upon that factor is never permissible. See Koon, 116 S. Ct. at 2050. All other factors, however, potentially may provide a basis for departure under appropriate circumstances. See id.; U.S.S.G. Ch. 1, Pt. A, intro. comment. 4(b) (explaining that with the exception of those factors specifically forbidden as bases for departure in the guidelines, the Commission did "not intend to limit the kinds of factors, whether or not mentioned anywhere else in the guidelines, that could constitute grounds for departure in an unusual case").
If the Commission has indicated through the guidelines, policy statements, or commentary that a specified factor may provide an appropriate basis for departure, that factor is considered to be an "encouraged factor," and a district court may consider departure on that basis provided that the applicable guideline does not already account for the factor. Koon, 116 S. Ct. at 2045. Accordingly, if a potential ground for departure identified by the district court is one on which the Commission has encouraged departure, the sentencing court should next analyze whether the applicable guideline takes that factor into account -- e.g., by adjustment to the base offense level through a specific offense characteristic, *fn2 by inclusion in the heartland of the applicable guideline, *fn3 or by instruction that the factor is an appropriate one to consider in determining the application of an adjustment to the offense level. *fn4 If the factor is not taken into account within the applicable guideline, the district court may exercise its discretion by departing from the guideline range. But, if the encouraged factor is taken into account within the applicable guideline, the sentencing court may depart only if it concludes that the factor is present to such an exceptional or extraordinary degree that it is outside the heartland of situations encompassed within the applicable guideline. See id.; United States v. Brock, 108 F.3d 31, 34-35 (4th Cir. 1997). Likewise, if the factor is one upon which the Commission discourages departure, a district court properly may depart only if it finds that the factor exists to such an uncommon degree that it is outside the heartland of circumstances embraced by the relevant guideline. See Koon, 116 S. Ct. at 2045; Brock, 108 F.3d at 34-35.
If a factor is one upon which the Commission has neither forbidden, encouraged, nor discouraged departure in the guidelines, policy statements, or commentary, the circumstance is considered to be an unmentioned factor. See Koon, 116 S. Ct at 2045; Brock, 108 F.3d at 35. Although the Commission recognized the possibility of departures based on factors not mentioned in the guidelines, it anticipated that such departures would be "highly infrequent""because the guidelines, offense by offense, seek to take account of those factors that the Commission's data indicate[d] made a significant difference in preguidelines sentencing practice." U.S.S.G. Ch. 1, Pt. A, intro. comment. 4(b). Thus, the Commission envisioned that departures principally would be reserved for those "rare" situations in which an important factor occurs in connection with a crime in which it typically occurs only infrequently. Id. Consequently, ...