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United States of America, Appellant, v. David Sklar, Defendant, Appellee.united States of America, Appellee, v. David Sklar, Defendant, Appellant
United States Court of Appeals, First Circuit. - 920 F.2d 107
Heard Sept. 13, 1990.Decided Dec. 3, 1990
Kevin O'Regan, Asst. U.S. Atty., Ware, Mass., with whom Wayne A. Budd, U.S. Atty., Boston, Mass., was on brief for the U.S.
Michael P. Ascher, Springfield, Mass., for David Sklar.
Before SELYA, Circuit Judge, COFFIN and BOWNES, Senior Circuit Judges.
SELYA, Circuit Judge.
In computing the guideline sentencing range (GSR) applicable to this case, the district court followed the government's urgings. The court then departed downward in imposing sentence. This Solomonic solution, cf. 2 Kings 3:16-28, apparently left both sides yearning for a whole baby. Cross-appeals ensued.
On January 24, 1989, defendant David Sklar was arrested near the Stockbridge, Massachusetts post office in possession of an Express Mail package containing approximately 75 grams of cocaine. A federal grand jury subsequently returned an indictment charging Sklar with conspiracy to traffick in drugs and possession of cocaine with intent to distribute it. See 21 U.S.C. Secs. 846, 841(a)(1). There was considerable pretrial skirmishing, occupying many months. Eventually, however, defendant pled guilty to both counts of the indictment.
On March 9, 1990, a sentencing hearing was held and evidence taken. The district court resolved defendant's objections, made a series of findings, and proceeded to calculate the GSR. See generally United States v. Diaz-Villafane, 874 F.2d 43, 47-48 (1st Cir.) (explaining method of computation under federal sentencing guidelines), cert. denied, --- U.S. ----, 110 S.Ct. 177, 107 L.Ed.2d 133 (1989); United States v. Wright, 873 F.2d 437, 440 (1st Cir.1989) (similar). No useful purpose would be served by retracing the details of that computation. For introductory purposes, we need observe only that the court determined the GSR to be 37-46 months. See U.S.S.G. Ch. 5, Pt. A (Sentencing Table) (adjusted offense level of 20; criminal history category II). The court then departed downward, citing defendant's posture of rehabilitation during the interval between indictment and sentencing, as well as defendant's cooperation with the government. The defendant was sentenced to serve 30 months in prison, plus a term of supervised release.
On appeal, Sklar challenges the "relevant conduct" component of the GSR calculation while the prosecution challenges the downward departure. We address these points seriatim, memorializing particular facts to the extent required in connection with each segment of our discussion.
Sklar notes that the district court's computation of the GSR rested upon its finding that his relevant criminal conduct involved at least 300 grams of cocaine. See U.S.S.G. Sec. 2D1.1(c)(11) (rev. ed. 1989) (Drug Quantity Table) (establishing base offense level of 22 where conduct implicates "300 G but less than 400 G of cocaine").1 The arrest netted only 75 grams and Sklar claims that the government never proved that he handled, or should be held to account for, any more copious quantities.
A. The Facts.
The pertinent facts are these. The envelope accepted on January 24, 1989 was the twelfth similar Express Mail package Sklar had received since June 1, 1988. The first 11 packages were delivered without incident. They were never produced in court, inspected by government agents, or chemically tested. The known data concerning them derived mostly from postal records. The following pattern emerged:
Package No. Receipt No. Date Sent Gross Weight
12 B51550087 1/20/89 11.3 oz.
11 B51538727 11/3/88 5 oz.
10 B70439299 10/26/88 5.8 oz.
9 B51539015 10/12/88 8 oz.
8 B06948768Y 9/26/88 9 oz.
7 B06948776Y 8/10/88 7 oz.
6 B74509091 8/1/88 8.3 oz.
5 B74509084 7/20/88 7 oz.
4 B74509090 6/30/88 1.9 oz.
3 74509093 6/15/88 5 oz.
2 74509094 6/9/88 10 oz.
1 74563671 6/1/88 3 oz.
To be exact, Package No. 12 contained 75 grams of cocaine. One ounce equals 28.35 grams. See U.S.S.G. Sec. 2D1.1 (Measurement Conversion Table)
The Sentencing Commission contemplated that, where drug quantities "not specified in the count of conviction [are to] be considered in determining the offense level" and "the amount physically seized does not reflect the scale of the offense," the district court should look to this application note for guidance. See U.S.S.G. Sec. 2D1.1, commentary (n. 12)
Sklar's base offense level was set at 22, predicated upon "300 G but less than 400 G of cocaine." U.S.S.G. Sec. 2D1.1(c)(11) (Drug Quantity Table). Thus, the district court's conservative estimate of the cocaine attributable to Sklar was 50 grams higher than the minimum necessary to animate that base offense level
A district court is, of course, free to consider a defendant's good faith and his cooperative attitude, even in the absence of a section 5K1.1 motion, "in determining what sentence within the guideline range should be imposed." LaGuardia, 902 F.2d at 1013 n. 4
Whether qualitative or quantitative, the circumstance must have weight, that is, it must be sufficiently portentous to move the case out of the heartland for the offense of conviction. See Aguilar-Pena, 887 F.2d at 350 (to warrant departing, circumstance must be such as to "distinguish[ ] the case from the mine-run for that offense"); see also Williams, 891 F.2d at 967 (discussing need for "meaningful atypicality")
For ease in reference, we shall henceforth refer to rehabilitation during the period between a defendant's arrest and the imposition of sentence as "presentence rehabilitation."
Even where a posture of rehabilitation will not adequately bottom a downward departure, it remains a factor which a district court can take into account in determining where a defendant's sentence should fall within the GSR
Van Dyke must be read in the dappled light cast by United States v. Braxton, 903 F.2d 292 (4th Cir.1990). There, the Fourth Circuit rejected a district court's statement that the purpose of the acceptance of responsibility reduction under U.S.S.G. Sec. 3E1.1 is to promote rehabilitation and, therefore, a defendant incapable of rehabilitation is not entitled to such a reduction. The court of appeals wrote that "rehabilitation is not a factor in the consideration of acceptance of responsibility." Id. at 296. Arguably, however, Van Dyke and Braxton are reconcilable. The later case may be read as holding only that a defendant's ability to rehabilitate is not a sine qua non for the acceptance-of-responsibility reduction (which may be awarded for other exemplary conduct)