|
Back to list of Dissenting
Opinions
Federal Judge of
the 8th Circuit, Myron Bright (Concurring Opinion)
Go directly to Judge Bright's concurring
opinion
United States Court of Appeals FOR THE EIGHTH CIRCUIT
No. 02-3380
United States of America, Plaintiff - Appellee,
v.
Mingo Flores, Defendant - Appellant
Appeal from the United States District Court for
the Northern District of Iowa. (1)
Submitted: May 13, 2003
Filed: July 18, 2003
Before LOKEN, Chief Judge, BRIGHT and MURPHY, Circuit Judges.
MURPHY, Circuit Judge.
Mingo Flores pled guilty to possessing with intent to distribute
approximately 391 grams of lysergic acid diethylamide (LSD),
in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A).
The district court1 sentenced him to 235 months after departing
upward from the sentencing guidelines. Flores appeals his sentence,
and we affirm.
On April 28, 2001, Flores shot a man named Steve Huerta, who
was one of drug suppliers and who was also romantically involved
with his sister, Vicki Flores. While Mingo Flores was riding
in a car, he saw Steve and Vicki arguing in an alley in Mason
City, Iowa. After the car stopped and Flores got out, Vicki told
him to shoot Huerta. Flores pulled out a .45 caliber handgun
and fired five times at Huerta, hitting him twice in the legs.
Huerta was taken to the hospital and survived. Flores was 17
years old at the time of the attack.
The police investigating the incident received two anonymous
reports which identified Flores as the shooter, and they obtained
a search warrant for the apartment where he was living. The officers
arrested Flores at his apartment for attempted murder and then
conducted a search, during which they found 81 sugar cubes laced
with 391 grams of LSD and one half milliliter of liquid LSD.
They also seized drug notes, drug related paraphernalia, and
a digital scale.
Flores pled guilty to the federal charge of possessing with
intent to distribute approximately 391 grams of LSD, in violation
of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A). A state
charge of attempted murder was dropped when Flores agreed that
he would plead guilty to a reduced charge of terrorism after
his federal sentencing.
On September 10, 2002, Flores came before the district court
for sentencing. The court increased his offense level under the
guidelines by two levels under § 2D1.1(b)(1) for possession
of a dangerous weapon. See United States Sentencing Commission,
Guidelines Manual, § 2D1.1(b)(1) (Nov. 2001) [USSG]. The
court then reduced his offense level by three for acceptance
of responsibility under USSG § 3E1.1 and calculated his
adjusted offense level to be 25. The presentence investigation
report (PSR), to which Flores made no substantive objection,
determined that he was in criminal history category IV. This
called for a statutory 10 year minimum sentence. See 18 U.S.C.
841(b)(1)(A); USSG Ch.5, Pt.A.
The court found, however, that criminal history category IV
did not adequately reflect the seriousness of Flores' past criminal
conduct or the likelihood that he would commit future crimes.
The court stated that even though he was only 18 years old at
the time of sentencing, Flores' criminal history, which began
at age seven, was "one of the more extensive and violent
. . . that [it had] seen in the nearly 700 criminal defendants
sentenced." United States v. Flores, No. CR01-3052MWB,
mem. op. At 5 (N.D. Iowa Sept. 11, 2002) (2)
The district court decided to depart upward under USSG §
4A1.3 to criminal history category VI, which provides a sentencing
range of 110 to 137 months for offense level 25. USSG Ch.5, Pt.A.
Since this range was still inadequate, it departed further to
offense level 31, which at criminal history category VI results
in a range of 188 to 235 months(3) Id. The court
noted that if Flores had been 18 at the time of the drug offense
and had pled guilty to the state charge before the sentencing
in this case, he would have been deemed a career criminal under
the guidelines. That would have meant a guidelines range of 262
to 327 months. See id.; id. § 4B1.1. Flores was then sentenced
to 235 months. On appeal, Flores contends that the court erred
in departing upward and that it imposed an unreasonable sentence.
Congress has recently modified the standard of review for
departures from the sentencing guidelines. See PROTECT Act, Pub.
L. No. 108-21, § 401(d), 117 Stat. 650 (2003) (amending
18 U.S.C. § 3742(e)) (4) Whether the district
court based a departure on a permissible factor and whether it
provided the written statement of reasons now required for a
departure is to be reviewed de novo. (5) §
3742(e). A sentencing court's factual findings are still reviewable
for clear error and the reasonableness of a permissible departure
for abuse of discretion. Id.
A factor is a permissible basis for departure if it "advances
the objectives set forth in [18 U.S.C. §] 3553(a)(2),"
"is authorized under [18 U.S.C. §] 3553(b)," and
"is justified by the facts of the case." 18 U.S.C.
§ 3742(j)(1). In this case, the district court identified
as factors supporting an upward departure the failure of Flores'
criminal history category to reflect adequately the seriousness
of his past criminal conduct and his potential to recidivate.
For several reasons, we conclude that these factors are permissible
grounds for upward departure in this case.
By taking account of the seriousness of Flores' past criminal
conduct and his potential for recidivism, the district court
advanced the statutory sentencing objectives of "afford[ing]
adequate deterrence to criminal conduct," § 3553(a)(2)(B),
and "protect[ing] the public from further crimes of the
defendant," § 3553(a)(2)(C). As the guidelines explain,
"[g]eneral deterrence of criminal conduct dictates that
. . . repeated criminal behavior . . . aggravate the need for
punishment," USSG Ch.4, Pt.A intro. comment., and keeping
a likely recidivist incarcerated clearly protects the public.
Furthermore, § 3553(b)(1) authorizes a court to depart
based on a factor that was "not adequately taken into consideration
by the Sentencing Commission in formulating the guidelines."
By explicitly authorizing departures under USSG § 4A1.3,
the Commission has acknowledged that it could not adequately
account for all circumstances that might arise in individual
cases such as where "reliable information indicates that
the criminal history category does not adequately reflect the
seriousness of the defendant's past criminal conduct or the likelihood
that the defendant will commit other crimes." USSG §
4A1.3, p.s.; see also id. Ch.1, Pt.A intro. comment. 4(b). The
factors relied on by the district court were thus specifically
authorized by § 4A1.3 and 18 U.S.C. § 3553(b).
Moreover, the facts of the case indicate that Flores was not
a typical category IV offender. There was no substantive objection
to the facts contained in the PSR, and they provide reliable
information indicating that the calculation of Flores' criminal
history category omits much of his past criminal conduct and
does not reflect the likelihood that he would victimize others
in the future if not deterred. It did not take into account serious
conduct for which he was arrested, but either not formally charged
or convicted. This includes the manufacture of two homemade bombs,
several violent assaults, and acts of burglary and theft. Even
the shooting of Huerta is not reflected in his criminal history
score because Flores was allowed to proceed with this federal
sentencing before he pled to the state charge.
Other incidents of juvenile criminal behavior were also not
reflected in his criminal history because of the manner in which
they were handled and the five year limitation on counting juvenile
sentences under USSG § 4A1.2(d). Several thefts, a weapons
charge, and a disorderly conduct were dealt with through informal
dispositions or warnings that did not result in sentences includible
in a criminal history score calculation. The guidelines indicate
that an upward departure under § 4A1.3 is especially appropriate
"in the case of younger defendants . . . who are more likely
to have received repeated lenient treatment, yet who may actually
pose a greater risk of serious recidivism than older defendants."
USSG § 4A1.3 comment.
We conclude that because of Flores' extensive history of wrongdoing
and his inability to reform despite the leniency frequently afforded
him, his criminal history category "does not adequately
reflect the seriousness of the [his] past criminal conduct or
the likelihood that the [he] will commit other crimes,"
USSG § 4A1.3, and that an upward departure "is justified
by the facts of th[is] case," 18 U.S.C. § 3742(j)(1)©;
cf. United States v. Vagenas, 318 F.3d 819, 821 (8th Cir.
2003) (§ 4A1.3 upward departure appropriate "where
there is evidence of obvious incorrigibility" (internal
quotation marks omitted)). The district court did not therefore
err in departing upward based on the inadequacy of Flores' criminal
history category.
Flores argues that even if a departure were permissible, an
upward departure of 115 months beyond the 120 month mandatory
minimum sentence is unreasonable. Flores' criminal history is
a record of frequent and often violent criminal behavior that
culminated in the sudden shooting of Steve Huerta. His repeated
encounters with the criminal justice system have proved incapable
of deterring him from further illegal activity. The guidelines
explain that when sentencing offenders with records of past criminal
conduct, a court must consider the need to "protect the
public from further crimes of the . . . defendant," USSG
Ch.4, Pt.A, intro. comment., and to send "a clear message
. . . to society that repeated criminal behavior will aggravate
the need for punishment with each recurrence," id. In light
of these considerations and based on this record, we cannot conclude
that the court abused its discretion by the extent of its departure.
Flores also suggests that it was inappropriate for the district
court to consider that he almost qualified for career offender
status, but the court only used the career offender range as
an indicator of a reasonable sentence for someone with a criminal
history as extensive as his. The sentence imposed by the district
court was 27 months less than the minimum sentence that would
have applied to Flores as a career offender, and the district
court did not abuse its discretion with respect to the reasonableness
of the sentence. (6)
For these reasons, we affirm the judgment of the district
court.
BRIGHT, Circuit Judge, concurring.
I write separately to emphasize the importance of a district
judge's decision-making role in sentencing criminal offenders.
In this case, the Honorable Mark W. Bennett, Chief Judge, United
States District Court for the Northern District of Iowa, is a
very able and experienced judge. As the majority notes, he wrote
an extensive opinion explaining in detail why this offender should
have a substantial increase in sentence above the Guidelines
range. His analysis is careful, thorough, and appropriate.
Chief Judge Bennett elected to sentence above the Guidelines
and we approve because he exercised his discretion with care
and diligence. Chief Judge Bennett has also sentenced below the
Guidelines in careful appraisals of the offenders and the offenses
as have other United States district judges. He has also interpreted
ambiguous sentencing provisions in a fair and judicious way.
See, e.g., United States v. Madrigal, 327 F.3d 738 (8th
Cir. 2003).
I write separately in this case to emphasize that Chief Judge
Bennett is typical of the able, intelligent, and perceptive district
judges who serve the federal judiciary and impose sentences on
federal offenders. This court and every court ought to give due
deference to the sentencing decisions of the district judge.
However, the Sentencing Guidelines and other changes limit the
discretion of the district judge.
This does not mean that sentencing disparities have been eliminated
or that injustice does not exist, because it does. What it has
come to mean is that much of the discretion in sentencing decisions
unfortunately falls to persons far less qualified to judge an
offender than the district judge. While we say the district judge
sentences the offender, in fact, the prosecutor, as I have shown
in a number of opinions, often has more input into the sentence
to be imposed than does the district judge. The sentencing process
also can become mechanical when a probation officer figures out
the mathematical aspects of what constitutes a sentence under
the guidelines.
In his opinion, Chief Judge Bennett recognized the injustices
of always sentencing under the Guidelines, as presently construed
and administered by the federal courts and the appellate courts,
and noted many cases, some from my dissenting or concurring opinions.
Chief Judge Bennett wrote: While the undersigned shares many
of the views expressed by Senior Circuit Judge Myron H. Bright
in several of his concurrences and dissents in which he condemns
the harsh injustices that application [of] the Federal Sentencing
Guidelines imposes, the court finds that this case presents an
exception and that a departure is entirely justified by Flores's
demonstrated propensity for violence, his recidivist nature,
and the need to protect society.
United States v. Mingo Flores, No. 01-3052, at 30-31
n.9 (N.D. Iowa filed Sept. 11, 2002). (7)
For a fair and proper sentencing procedure some discretion
should be under the aegis of the sentencing judge. Recently (December
2002), the United States Sentencing Commission published a "Summary
Report" on a survey of Article III judges. This summary
is a component of the fifteen-year report on the United States
Sentencing Commission's legislative mandate. That report read
in part:
Areas of Least Effectiveness in Meeting the Sentencing Goals
- A plurality of both responding district and circuit court
judges indicated that there were two areas in which the guidelines
were less effective in achieving the purposes of sentencing:
- - providing defendants with training, medical care, or treatment
in the most effective manner, where rehabilitation was appropriate
(Q5) and
- - maintaining sufficient flexibility to permit individualized
sentences when warranted by mitigating or aggravating factors
(Q9).
- Approximately 40 percent of responding district court judges,
and slightly more responding circuit court judges, reported that
few of their cases met these sentencing goals.
United States Sentencing Commission, Summary Report, at 2
(Dec. 2002).
The federal guideline system has been the subject of comment
by the American Law Institute (8) in its report,
Model Penal Code: Sentencing Report (April 2003):
Although the federal sentencing system is but one of 16 jurisdictions
that currently operate with sentencing guidelines fashioned by
a sentencing commission (with additional guideline reforms now
in progress in several new jurisdictions), it is by far the best
known and most criticized of all commission-guidelines structures.
Michael Tonry has gone so far as to say that "[t]he guidelines
developed by the U.S. Sentencing Commission . . . are the most
controversial and disliked sentencing reform initiative in U.S.
history." In contrast, state commission-guideline systems
have enjoyed general acceptance and support among the lawyers
and judges who regularly use them.
Id. at 115 (footnotes omitted). "The proposed Model Penal
Code structure, and all state commission-guidelines structures,
preserve far greater judicial sentencing discretion than the
current federal system." Id. at 116. American Law Institute
drafters opted to replicate state rather than federal practice
when it comes to matters of judicial discretion.
An already difficult situation has been made worse, by Congress's
recent passage of certain provisions in what is called the PROTECT
Act of 2003, Pub. L. No. 108-21, 117 Stat. 650 (2003). This legislation
includes provisions that sharply limit downward departure grounds
for certain federal defendants, increase appellate court oversight
of sentencing, and instruct the Sentencing Commission to take
steps to reduce the overall number of downward departures. The
PROTECT Act was not initiated by the Sentencing Commission. Morever,
the enactment, as I understand it, took place without input from
the Sentencing Commission, without its statistics, and without
its consideration.
It is not my position to criticize Congress. I simply point
out that this enactment will exacerbate the problems with the
Guidelines by making it even more difficult for district judges
to do justice under the law as circumstances warrant. We should
take note of the fact that state legislatures and American Law
Institute drafters have turned away from federal practice and
opted for more effective sentencing structures, which give judges
discretion as those persons best qualified to exercise it.
The passage of the PROTECT Act creates new and greater problems
in federal sentencing. I quote from one federal judge who based
his decision to resign from the bench upon this very problem:
"Every sentence imposed affects a human life and, in
most cases, the lives of several innocent family members who
suffer as a result of a defendant's incarceration. For a judge
to be deprived of the ability to consider all of the factors
that go into formulating a just sentence is completely at odds
with the sentencing philosophy that has been a hallmark of the
American system of justice.
"When I took my oath of office 13 years ago I never thought
that I would leave the federal bench. While I might have stayed
on despite the inadequate pay, I no longer want to be part of
our unjust criminal justice system." - Hon.
John S. Martin, Jr., Let Judges Do Their Jobs (NY Times,
June 24, 2003, at A31.)
I want to conclude by making a plea to the district judges
of this country who feel that they should have some say and some
discretion in sentencing. Let your opinions disclose your views
about the injustice in the sentencing decision or decisions you
are obligated to impose by Congressional mandate and/or the Sentencing
Guidelines.
Let me say further that judges generally do not object to
appropriate guidelines for sentencing decisions but the time
has come for major reform in the system. I say in this concurring
opinion, as I have said in other sentencing opinions that I have
written, "Is anyone out there listening?" United
States v. Alatorre, 207 F.3d 1078, 1080 (8th Cir. 2000) (Bright,
J., concurring).
A true copy.
Attest: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
Footnotes:
1. The Honorable Mark W. Bennett, Chief Judge,
United States District Court for the Northern District of Iowa.
2. The PSR reveals that Flores has been arrested
on more than 25 criminal charges. The district court adopted
the following summary of Flores' criminal history in its sentencing
memorandum: The defendant has a significant juvenile record involving
three adjudications [of delinquent] for assault with dangerous
weapons (brandishing a knife), assault, refusing to obey a lawful
order, theft-fourth degree, interference with official acts,
possession of marijuana, and public intoxication. He had two
juvenile cases (carrying weapons and attempted third degree burglary)
waived to adult court.
The carrying weapons offense involved threatening a person
with a .30 caliber handgun. The defendant also had prior juvenile
dispositions for theft-fifth degree (three separate cases), carrying
a concealed weapon (a butterfly knife), and disorderly conduct.
Furthermore, he has other arrests for criminal mischief-fourth
degree (two arrests), burglary-third degree, serious assault
(two arrests), making homemade explosives, threats with weapons,
theft-second degree, theft from vehicles, harassment, public
intoxication, and attempted murder as well as two status offenses.
Flores, mem. op. at 5.
3. The court stated that the departure to
offense level 31 could be based on either § 4A1.3 or §
5K2.0 of the guidelines. See § 4A1.3, p.s. (If "the
guideline range for Criminal History Category VI is not adequate
. . . . a departure above the guideline range . . . may be warranted
. . . . [and] should [be] structure[d] . . . by moving incrementally
down the sentencing table to the next higher offense level .
. . until [the court] finds a guideline range appropriate to
the case."). Because we decide that the departure is permissible
under § 4A1.3, we do not consider the court's invocation
of § 5K2.0.
4. When asked at oral argument about the PROTECT
Act's passage on April 30, 2003 and its modified standard of
review, neither party disagreed with application of that standard
to this case or raised any issue of retroactivity. We assume
without deciding that the new standard of review applies, but
we would also affirm under the previous more deferential standard.
5. Under 18 U.S.C. § 3553©(2), as
amended by § 401© of the PROTECT Act, if a district
court departs from the guideline range, its "reasons [for
departing] must . . . be stated with specificity in the written
order of judgment and commitment." § 3553©(2).
Here the district court attached a brief written statement to
the order of judgment but presented a more detailed discussion
of its reasons for departing in a memorandum opinion issued relating
to the judgment. Neither party has challenged the sufficiency
of the district court's written statement in this case.
6. We also reject the argument that the district
court's departure was an impermissible effort to punish Flores
for the Huerta shooting which had not yet resulted in a conviction.
We have carefully reviewed the record and the district court's
thorough memorandum opinion, and we cannot say that the court
erred in taking note of the shooting. So long as previous criminal
conduct is shown by "reliable information," it may
be considered by a sentencing court even in the absence of conviction.
USSG § 4A1.3, p.s.; accord United States v. Joshua,
40 F.3d 948, 953 (8th Cir. 1994). In this case, the uncontested
facts in the PSR establish that Flores shot Huerta.
7. See, e.g., United States v. Sweesy,
272 F.3d 581, 583-84 (8th Cir. 2001) (Bright, J., dissenting)
(noting that "[j]udges should take into account that many
guideline drug sentences are often heavier than is warranted
by the nature of the crime. This is where a district judge's
discretion becomes important and where the judge often should
take advantage of the provisions that permit reducing sentences
under the guidelines.");
United States v. Jones, 145 F.3d 959, 966 (8th Cir.
1998) (Bright, J., dissenting in part and concurring in part)
("The sentence of Jones, a man with the mind of a child,
to thirty years of incarceration makes a mockery out of the phrase,
'Equal Justice Under the Law.' In this case, the lowest person
on the totem pole, a mere street-level seller with an I.Q. of
fifty-three received a heavier sentence than the mastermind of
the conspiracy and the conspiracy's primary drug supplier. What
kind of system could produce such a result? This case provides
yet another example of how rigid sentencing guidelines and the
mandatory minimums associated with drug cases make an unfair
'criminal' system.") (footnote omitted);
Montanye v. United States, 77 F.3d 226, 233 (8th Cir.
1996) (Bright, J., dissenting) ("By any ordinary measure
outside the guidelines, I would think this sentence would be
considered draconian, unnecessarily harsh and unreasonable.");
United States v. Hiveley, 61 F.3d 1358, 1363, 1365
(8th Cir. 1995) (Bright, J., concurring) ("[U]nwise sentencing
policies which put men and women in prison for years, not only
ruin lives . . . but also drain the American taxpayers. . . .
[It is] time to call a halt to the unnecessary and expensive
cost of putting people in prison for a long time based on the
mistaken notion that such an effort will win 'The War on Drugs'
. . . . The public needs to know that unnecessary, harsh and
unreasonable drug sentences serve to waste billions of dollars
without doing much good for society. We have an unreasonable
system.");
United States v. Smiley, 997 F.2d 475, 483 (8th Cir.
1993) (Bright, J., dissenting) (suggesting that sentences imposed
under the Guidelines where no rules of evidence apply and where
sentencing judges often summarily approve probation officer recommendations
seem to come from an Alice in Wonderland world where up is down
and down is up);
United States v. Galloway, 976 F.2d 414, 438 (8th Cir.
1992) (Bright, J., dissenting) (comparing sentences imposed under
the relevant conduct provisions of the Guidelines to an Alice
in Wonderland world in which words lose their real meaning and
down is up and up is down);
United States v. England, 966 F.2d 403, 411 (8th Cir.
1992) (Bright, J., concurring) ("In too many instances,
the sentences directed by the guidelines waste the lives of men
and women. . . . It is time for a re-evaluation and change.");
United States v. Simmons, 964 F.2d 763, 778 (8th Cir.
1992) (Bright, J.) (commenting that "[t]his case and other
drug convictions like it demonstrate that, under the Sentencing
Guidelines, district judges are obligated to sentence first-time
drug offenders to extremely long prison terms under evidence
which is often haphazardly produced and considered without regard
to traditional rules of evidence. The guidelines procedure has
chosen to bypass adherence to rules of evidence which have developed
over hundreds of years in the common law tradition to assure
reliability in factfinding.")
8. The American Law Institute organized in
1923, consists of approximately 3000 judges, lawyers, and law
teachers elected on the basis of professional achievement and
demonstrated interest in the improvement of law. Among other
things, the organization engages in activities to improve the
law and instigates the study and drafting of model statutory
formulations, such as the Model Penal Code, the Model Code of
Evidence, and a proposed Federal Securities Code. The references
in this concurring opinion are to a report of the American Law
Institute on its newly drafted Model Penal Code on sentencing,
released April 11, 2003.
Back to list of Dissenting
Opinions
Back to the top
If you have a dissenting opinion of a Federal or State Judge,
please mail or e-mail a copy to:
November Coalition
795 South Cedar
Colville, WA 99114
(509) 684-1550
editor@november.org
|