§734 Departures: National Security, Public Health and Safety, Terrorism
10th Circuit affirms “community danger” departure for drunk driver who killed pedestrian. (734)(741) Defendant pled guilty to involuntary manslaughter after he struck and killed a pedestrian crossing the street. His guideline range was 37-46 months, but the court imposed a two-level upward departure under §5K2.14, because defendant’s actions endangered the community “to an exceptional degree.” The Tenth Circuit approved the §2K2.14 departure, finding no double counting. Although defendant’s base offense level of 22 took into account the fact that the offense “involved the reckless operation of a means of transportation,” it did not take into account defendant’s blood alcohol level, the extreme degree to which he exposed other members of the public to serious injury or death before and after hitting the pedestrian, his post-accident flight, or the degree to which he exposed law enforcement officers and members of the public to danger during that flight. The §3C1.2 reckless endangerment enhancement did not take into account defendant’s blood alcohol level, and the fact that multiple people were exposed to a risk of serious injury or death. U.S. v. Singer, __ F.3d __ (10th Cir. June 13, 2016) No. 15-2169.
1st Circuit rejects ex post facto claim based upon reliance upon policy statement that went into effect after crime. (734) The district court departed upward based upon several grounds, including the fact that defendants’ conduct was terrorism under guideline section 5K2.15. Defendants contended that the district court’s reliance on the policy statement regarding terrorism violated the ex post facto clause because the statement was issued in November 1989, after the criminal acts were complete. The 1st Circuit found that although the district court improperly relied upon the statement, the error was “of no consequence.” Defendants made no showing that the court’s reliance upon section 5K2.15 resulted in the imposition of more severe punishment than otherwise would have been ordered. The trial court articulated a number of legitimate bases for the departure apart from terrorism. Moreover, even before the publication of section 5K2.15, the court was free to consider terrorism an aggravating factor not adequately considered by the sentencing commission. U.S. v. Johnson, 952 F.2d 565 (1st Cir. 1991).
3rd Circuit rejects upward departure in arms export case based on threat to national security. (734) Defendant was convicted of conspiring to export to Taiwan certain components of military equipment without the required export license. The district court departed upward from level 24 in section 2M5.2 to level 29, based on the threat to national security and the large quantity of commerce involved. The 3rd Circuit reversed, holding that the case clearly fell within the heartland of cases considered by the sentencing commission. Application note 2 to section 2M5.2 indicates that the guideline assumes some threat to national security. Although level 29 is the offense level for unauthorized disclosure of top secret information, where a guideline already contemplates the potential harm of a crime, the court cannot depart upward by analogy to another crime involving the same potential harm. Under application note 2, the amount of commerce would have to be extreme to justify an upward departure. Although defendant requested a price for 5,000 units of the equipment, only 11 units were ever exported, and there was no evidence that defendant’s organization was capable of exporting any greater quantity. U.S. v. Tsai, 954 F.2d 155 (3rd Cir. 1992).
3rd Circuit finds departure for terrorist exceeded bounds of reasonableness. (734) Defendant, a member of a violent terrorist organization, was arrested transporting homemade bombs which he intended to detonate in a federal building in New York City. The district court departed upward from 33 months to 30 years. Since defendant intended to use his bombs to kill people, an analogy to the attempted murder guideline, carrying a base offense level of 20, could be made. The district court could assume that defendant intended to detonate his bomb when at least six people were present, justifying a five-level upward adjustment. The district court also could reasonably have imposed a two-level increase for more than minimal planning. However, the court found that intent to disrupt a government function was an inappropriate ground for departure. Defendant’s actions were intended to influence the government’s terrorist policies with respect to Libya, which was “indistinguishable from the motivation underlying ordinary civil disobedience designed to change government policy.” A departure of five levels could also be properly based on defendant’s extreme conduct and threat to public safety. Adding all of these factors together, defendant’s conduct could be analogized to a defendant with an offense level of 32. Based on a criminal history category of VI, the resulting range would be 210 to 262 months. Therefore, the district court’s sentence of 360 months was unreasonable. U.S. v. Kikumura, 918 F.2d 1084 (3rd Cir. 1990), overruled on other grounds by U.S. Grier, 449 F.3d 558 (3d Cir. 2006).
3rd Circuit upholds upward departure when defendant tried to escape in van driven by a co-defendant. (734) Defendant jumped into a van driven by a co-defendant and sped away when police tried to arrest him for possession of stolen property. The sentencing court departed upward because of the danger to safety posed by the escape. Defendant appealed, arguing he could not be held accountable for his co-defendant’s dangerous driving during the escape attempt. The 3rd Circuit disagreed, holding that the district court’s ruling that defendant consented to the co-defendant’s driving in order to escape was not clearly erroneous. Therefore, departure on this ground was proper. U.S. v. Chiarelli, 898 F.2d 373 (3rd Cir. 1990).
3rd Circuit holds upward departure for public welfare reasons is to be rarely imposed. (734) In a case involving a conspiracy to commit firearms offenses, the district court made an upward departure, based in part upon the threat to public welfare caused by untraceable handguns. The Third Circuit reversed stating that whenever firearms are involved, public safety is a consideration. However, § 5K2.14 of the guidelines clearly states that departures on public safety are warranted only when the danger posed is to a degree substantially in excess of that which is ordinarily involved. Because the degree of danger was not in excess of that considered by the commission in establishing the guidelines, the departure was improper. U.S. v. Uca, 867 F.2d 783 (3rd Cir. 1988).
4th Circuit reverses departures for danger to public, death, and psychological harm to victims’ families. (734) Defendant engaged in a high-speed car race with another car that resulted in the death of the other driver and two innocent drivers. He was convicted of involuntary manslaughter and reckless driving. The district court departed upward by (a) eight levels under § 5K2.14 to reflect the danger to the public, (b) four levels under § 5K2.1 to account for the additional death of the other driver, and (c) three levels under § 5K2.3 based on the extreme psychological impacts to the families of the victims. The Fourth Circuit reversed. The base offense level for the involuntary manslaughter conviction was already increased under § 2A1.4(a)(2) from 10 to 14 due to his reckless driving. Thus, to make a § 5K2.14 departure, the district court needed to find that defendant’s reckless driving was so extraordinary as to be outside the “heartland.” Although the deaths of the two innocent bystanders were taken into account under the manslaughter guideline, the district court found a § 5K2.1 departure appropriate in light of the death of the other race participant. A § 5K2.1 departure is permitted even when the decedent was an active participant in the activity that resulted in his death. However, the departure here was an abuse of discretion because § 5K2.1 requires the court to base the extent of the departure on the defendant’s state of mind. Finally, the § 5K2.3 was improper because the families of the decedents were not victims of the offense under the guidelines. An indirect victim must have some nexus or proximity to the offense. U.S. v. Terry, 142 F.3d 702 (4th Cir. 1998).
5th Circuit upholds upward departure based upon defendant’s obstruction of justice, experience in law enforcement and danger to public safety. (734) Defendant, a county sheriff, became involved in a conspiracy to manufacture and sell methamphetamine. The 5th Circuit upheld an upward departure based upon defendant’s obstruction of justice, his experience in law enforcement and danger to public safety. Although defendant had already received a two-level increase in offense level for obstruction of justice, he had committed numerous acts of obstruction. He discussed with co-conspirators false statements to tell authorities, alerted a co-conspirator of an undercover operation, and instructed a co-conspirator to threaten a man who was speaking to authorities. Given defendant’s egregious behavior in abusing his position as sheriff to further the drug conspiracy, it was reasonable for the district court to rely upon defendant’s position as sheriff. It was also reasonable to rely upon the threat to public safety as a basis for departure. This justification is not limited to national public health and safety offenses. Defendant endangered public safety by recruiting a co-conspirator as a deputy sheriff, transferring a co-conspirator’s parole supervision to defendant’s county, and convincing another county to release a co-conspirator from jail. U.S. v. Wade, 931 F.2d 300 (5th Cir. 1991).
5th Circuit affirms upward departure based upon risk to public safety. (734) Defendant loaded 28 cases of explosives into a U-Haul trailer and drove them from Belton, Texas to Houston. The district court departed upward from 33 months, and sentenced defendant to 60-month concurrent terms on each count. The departure was based upon the risk the offense represented in the community. The 5th Circuit affirmed. Although the commentary to guideline § 2K1.3 suggests that public risk was considered by the sentencing commission, the degree of the risk was not. The court found that the commission did not contemplate the “unique danger of improperly hauling explosives through residential areas.” Judge Rubin, concurring, found it inconsistent to conclude that the guidelines do not adequately consider the degree of harm, and then not require the judge to articulate reasons for the degree of departure. However, because the 5th Circuit does not require a district court to articulate reasons for the degree of the departure, he concurred. U.S. v. Huddleston, 929 F.2d 1030 (5th Cir. 1991).
6th Circuit permits departure from career criminal guideline for other violent crimes. (734) While riding in a car on a congested portion of an interstate highway, defendant pointed a loaded handgun at motorists, and then jerked his arm upward as if he had just fired the gun. He also fired the weapon at a police officer following defendant in an unmarked car. He pled guilty to being a felon in possession of firearm. The district court departed upward under § 5K2.14 (endangering public safety) for “dry-firing” the gun at motorists and under § 5K2.6 (use of a weapon) for firing the gun at a police officer. The district court had previously increased defendant’s offense level from 33 to 34 for this same conduct under § 4B1.4(b)(3)(A) (using or possessing gun in connection with crime of violence). The Sixth Circuit held that the court’s consideration of defendant’s conduct on the highway was a permissible basis for an upward departure. Section 4B1.4(b)(3)(A) requires the commission of a single crime of violence. Since the court needed only one of these crimes of violence to enhance defendant’s offense level to 34, it could depart upward for the other crime(s) of violence defendant committed that night. Section 5K2.0 says that a departure may be warranted where the applicable guideline does not consider the possibility of multiple victims. U.S. v. Pluta, 144 F.3d 968 (6th Cir. 1998).
6th Circuit affirms upward departure for attack on flight crew after plane took off. (734) Defendant, a flight engineer for Federal Express, boarded a Federal Express plane on which he was not working. After the plane took off, he entered the cockpit and attacked the crew with a hammer, a spear gun and a spear. Although all three crew members were seriously injured, they were able to make an emergency landing. Defendant was convicted of attempted aircraft piracy and interference with crew members. The Sixth Circuit affirmed an upward departure based on multiple victims, serious physical injury, significant property damage and the potential for extreme danger to the public. The aircraft piracy guideline, § 2A5.1, did not contemplate multiple victims. The extent of the victimization was extreme, because all three crew members suffered serious physical injuries, a basis for departure under § 5K2.2. Federal Express incurred over $800,000 in property damage from the crime, which is a ground for departure under § 5K2.5. Finally, it was entirely proper for the district court to consider under § 5K2.14 the danger to the public created by defendant’s attack. The crime involved far more than simply rerouting the plane. U.S. v. Calloway, 116 F.3d 1129 (6th Cir. 1997).
6th Circuit says mentally ill defendant requires civil commitment, not departure. (734) Defendant suffered from chronic paranoid schizophrenia. He purchased two firearms by falsely stating on an ATF form that he had never been committed to a mental hospital. The district court committed him to a mental hospital in lieu of imprisonment. After the doctors found a drug that partly controlled his delusions, they issued a Certificate of Recovery and Request for the Court to Proceed with Final Sentencing. However, they also certified that defendant’s mental condition created a substantial risk to the public. The district court departed upward under § 5K2.14 and § 5K2.0 to a sentence of 120 months based on defendant’s danger to the community. The 6th Circuit reversed, ruling that the appropriate way to protect the public was a commitment proceeding under 18 U.S.C. § 4246. Section 5K2.14 requires a court to look at the dangerousness of the defendant at the time of the crime, not his future dangerousness. Also, § 5H1.3 says mental and emotional conditions are not ordinarily relevant, and the need for psychiatric treatment does not justify a § 5K2.0 departure. U.S. v. Moses, 106 F.3d 1273 (6th Cir. 1997).
6th Circuit finds departure for endangering public was really a sentence for offense with no guideline. (734) Defendants were convicted of various methamphetamine charges, including endangerment to human life while manufacturing methamphetamine, in violation of 21 U.S.C. § 858. They objected to the district court’s “upward departure” under § 5K2.13 for endangering the public welfare. The Sixth Circuit found that the “departure” was really an attempt to determine a correct sentence for defendants on the § 858 charge for which, at the time of the crime, there was no sentencing guideline. Defendants committed the charged offenses between July and October of 1989 but § 2D1.10 only became effective on November 1, 1989. The district court decided on a two point increase to defendants’ offense level as an appropriate sentence for the § 858 charge, using the unfortunate language that “an upward departure” was warranted. The judge’s only constraints under the 1987 guidelines were the 10‑year statutory maximum and the parameters of 18 U.S.C. § 3553(a)(2)(A)‑(D). U.S. v. Jennings, 83 F.3d 145 (6th Cir. 1996).
7th Circuit finds refusal to depart was reviewable because based on legal conclusion. (734) After robbing two banks, defendant was overcome by guilt and turned himself in to authorities. Section 5K2.16 permits a downward departure where the defendant voluntarily discloses to authorities the existence of the offense prior to the discovery of the offense, and such offense was unlikely to have been discovered otherwise. The district court ruled that § 5K2.16 was inapplicable to defendant’s case because it applies to the voluntary disclosure of the offense, not the voluntary disclosure of the criminal who committed the offense. The Seventh Circuit held that the refusal to depart was reviewable because it was based on the court’s legal interpretation of § 5K2.16 rather than on the court’s exercise of discretion. The district court ruled that as a matter of law § 5K2.16 only applies to voluntary disclosures of the offense. Unfortunately for defendant, this conclusion was correct. Section 5K2.16 does not apply to individuals who simply confess their involvement in a crime already known to the authorities. U.S. v. Aerts, 121 F.3d 277 (7th Cir. 1997).
8th Circuit rejects upward departure in false anthrax case for disruption of government function and threat to public safety. (734) Defendant called a 911 operator and stated that anthrax was in one of the local schools. At sentencing, the district court departed upward based on (1) the disruption of governmental functions; (2) the significant danger to the public heath and safety; (3) defendant’s recidivist tendencies; and (4) the timing of the offense. The Eighth Circuit reversed. Section 2K2.7 permits a departure based on a “significant disruption of a government function.” While there was evidence of a disruption (law enforcement were dispatched to the local post office and school to intercept mail), evidence concerning the significance of the disruption was not in the record. Moreover, § 2A6.1(b)(4)(A) already provided for an increase if government functions are disrupted, and the court chose not to apply that enhancement. Thus, the court implicitly found the governmental functions of the school and mail delivery system were not disrupted to a substantial degree. The facts in the record did not support a departure under § 5K2.14 for threatening national security or public health. Defendant’s threat was empty. While the response to an empty threat might endanger the public, that was not the case here. Finally, it was unclear how the timing of the offense affected the court’s reasoning. U.S. v. Cole, 357 F.3d 780 (8th Cir. 2004).
8th Circuit upholds upward departure for “assaultive” prior conviction and possession of firearms. (734) Defendant was found with a loaded nine millimeter pistol and a loaded AK47 assault rifle. He was convicted of being a felon in possession of a firearm. The applicable guidelines range was eight to 14 months, but the district court departed upwards and sentenced defendant to 60 months imprisonment, citing as aggravating circumstances the dangerous nature of the firearms, the fact that they were fully loaded and the assaultive nature of defendant’s previous conviction for second degree robbery and second degree assault. Although the district court did not state whether its departure was a criminal history departure under guidelines § 4A1.3 or a general departure under guidelines § 5K2.0, the 8th Circuit upheld the departure. It found that these factors were not adequately taken into consideration by the Sentencing Commission, and that the factors illustrated the danger that defendant repeatedly posed for others, and warranted a severe departure. U.S. v. Thomas, 914 F.2d 139 (8th Cir. 1990).
9th Circuit finds 12-level upward departure and 41-month sentence reasonable for eco-terrorist. (734) Defendant was convicted of offenses arising out of her participation in an arson of a lumber company headquarters. Defendants convicted of terrorism against government entities are subject to a 12-level enhancement under § 3A1.4. Because defendant’s offense did not qualify for the enhancement under § 3A1.4, the district court departed upward by 12 levels. Reviewing the sentence for reasonableness (and not as a departure), the Ninth Circuit held that the sentence was reasonable in light of the seriousness of the offense, the need to deter similar offenses, and the district court’s effort to reduce disparity with coconspirators who engaged in arson against government entities. U.S. v. Tankersley, 537 F.3d 1100 (9th Cir. 2008).
9th Circuit upholds upward departure for terrorism that did not qualify for terrorism enhancement. (734) Defendant was a member of a group of environmental activists who set fires at various corporate and government facilities. Defendant participated only in an arson directed at the headquarters of a lumber company. When the district court sentenced other members of the group who set fires at government facilities, it applied the terrorism enhancement in § 3A1.4 to increase the defendants’ offense level by 12. The court concluded, however, that § 3A1.4 did not apply unless the defendant committed terrorism directed at a government. The court departed upward by 12 levels in sentencing defendant because her conduct constituted terrorism, even if directed at a private company. The Ninth Circuit rejected defendant’s contention that Congress intended the terrorism enhancement to apply only to conduct directed at governments, not conduct directed at private entities. Because the district court therefore did not violate Congress’s intent in imposing the 12-level enhancement, the court affirmed the upward departure. U.S. v. Tankersley, 537 F.3d 1100 (9th Cir. 2008).
9th Circuit denies departure for voluntary disclosure of offense even though defendant turned himself in. (734) After robbing two federally insured banks, defendant voluntarily notified police and confessed. He pled guilty and at sentencing sought a downward departure under § 5K2.16 for “voluntary disclosure of offense.” The district court denied the departure and on appeal the Ninth Circuit affirmed. Under § 5K2.16, the defendant must show that the offense was unlikely to have been discovered without his confession. The section does not apply to individuals who simply confess involvement in a crime already known to the authorities. U.S. v. Brownstein, 79 F.3d 121 (9th Cir. 1996).
9th Circuit reverses where judge relied on double hearsay and refused to consider contrary evidence. (734) In a letter to the judge at the first sentencing, defendant’s ex-wife wrote that defendant’s four-year-old son told her that defendant had made fireworks in his home in the presence of the son. Based on these double hearsay statements, the judge enhanced defendant’s sentence by three levels for risking public safety under § 2K2.14. The defendant vainly attempted to induce the court to consider a letter from county juvenile court service officers stating that defendant’s ex-wife was “erratic, unstable and inconsistent in her parenting abilities,” and that “she would stop at nothing to ensure that [defendant] be erased from any scenario involving their mutual child.” The 9th Circuit found that district court’s wholesale rejection of the defendant’s statement that he never made fireworks in the presence of his son appeared to be “arbitrary.” The sentence was vacated and the case was remanded to a different judge. U.S. v. Williams, 41 F.3d 496 (9th Cir. 1994).
9th Circuit says death of peace officer in drunk driving case did not disrupt government function or public safety. (734) Defendant drove drunk, and collided with a vehicle driven by an Arizona Department of Public Safety officer, killing him. The district court departed upward based on disruption of governmental function under § 5K2.7 and endangerment of the public welfare under § 5K2.14. The 9th Circuit reversed, noting that the only evidence to support the departure was that other officers were stressed, and “not concentrating on their job.” The court found this testimony insufficient to support a finding that the department’s functioning was impaired in any way or that the public welfare was endangered. U.S. v. Dayea, 32 F.3d 1377 (9th Cir. 1994).
9th Circuit upholds departure for terrorism and destruction potential but remands as to extent. (734) Defendant pled guilty to damaging or attempting to damage a building by means of an explosive device, endeavoring to intimidate and impede employees of the IRS, and arson based on launching of mortar attacks and planting car bombs in several government buildings. The district court departed upward from a guideline range of 63-78 months to a sentence of 10 years. The departure was apparently based on the terroristic nature of the defendant’s behavior and the potential for destructiveness. The Ninth Circuit upheld both grounds for departure. Nothing in guideline §2K1.4 indicated that the Commission already considered terrorist activity in setting the offense level and §5K2.12 specifically identifies terrorism as a departure factor. Although §2K1.4 contemplates the risk of bodily harm or death, there is nothing to indicate that the Commission took into account the degree of risk here. However, because the district court provided no explanation for the extent of the departure, the case was remanded for resentencing. U.S. v. Hicks, 997 F.2d 594 (9th Cir. 1993).
9th Circuit finds departure was properly based on dangerous treatment of aliens. (734) Defendant was convicted of alien smuggling after evading Border Patrol agents in a 12-mile chase involving speeds of 100 mph and a collision resulting in minor damage to a car. Four aliens were found locked in the trunk of the car driven by the defendant. The district court had the authority to depart upward under note 8 to §2L1.1 because of dangerous treatment of the aliens. However, because there was no reasoned explanation of the extent of the departure, the case was remanded for the district court to explain the degree of departure by analogy to the guidelines. U.S. v. Cruz-Ventura, 979 F.2d 146 (9th Cir. 1992).
9th Circuit holds that smuggling 800 handguns did not justify an upward departure. (734) Defendant was arrested for smuggling 74 handguns into the Philippines. He admitted smuggling 800 guns in two years. He pled guilty to violating 22 U.S.C. section 2778 and 22 CFR 127.2. While free on bail awaiting sentencing, he was caught shipping another 70 handguns, and again pled guilty. He was sentenced to consecutive terms for the two offenses, but in U.S. v. Pedrioli, 931 F.2d 31, 33 (9th Cir. 1991), the 9th Circuit reversed. On remand, the district court departed upward because of the “extremity of the crime.” On appeal, the 9th Circuit again reversed, holding that 800 handguns did not justify a departure. The court rejected the district court’s finding that the handguns were intended to “wage war.” Moreover, the “mere fact that the handguns were intended for a military purpose,” by itself, “cannot support departure under 2M5.2.” Chief Judge Wallace dissented. U.S. v. Pedrioli, 978 F.2d 457 (9th Cir. 1992).
9th Circuit reverses for failure to explain the extent of departure in immigration case. (734) Under U.S. v. Lira-Barraza, 941 F.2d 745, 751 (9th Cir. 1991) (en banc), a district court must include a “reasoned explanation of the extent of the departure founded on the structure, standard and policies of the Act and Guidelines.” In this alien smuggling case, the district court increased the defendant’s sentence by eight levels without explaining the amount of its departure nor analogizing to other portions of the guidelines. The 9th Circuit rejected the government’s argument that the departure could be justified by analogy to the guideline on “interference with a flight crew.” Defendant’s conduct in leading the officers on a high speed chase “bore no resemblance to interference with a flight crew,” and at any rate the district court did not purport to make that analogy. The sentence was reversed. U.S. v. Hernandez-Rodriguez, 975 F.2d 622 (9th Cir. 1992).
9th Circuit upholds upward departure under 5K2.0 and 5K2.14 where homemade bombs posed a risk to public safety. (734) Defendant pleaded guilty to one count of possession of an unregistered homemade six-inch pipe bomb. At sentencing the district court departed upward from 16 to 24 months based on the nature of the homemade bombs made by the defendant, and the danger to society they posed. On appeal, the 9th Circuit affirmed. While the court agreed that public safety was taken into account by the Commission in drafting guideline § 2K2.2, the court found that the Commission “did not have in mind the unique dangers homemade bombs pose to public safety.” Defendant supplied one bomb to another person knowing that it could inflict substantial personal injury and structural damage. The court also found that guideline § 5K2.14 provided an alternative basis for a “public safety” departure. Defendant’s conduct here posed a threat substantially in excess of that ordinarily involved in the offense of possession of an unregistered firearm. U.S. v. Loveday, 922 F.2d 1411 (9th Cir. 1991).
9th Circuit upholds “national security” departure but remands on extent of departure. (734) Guideline § 5K2.14 permits an upward departure “[i]f national security, public health, or safety was significantly endangered.” The 9th Circuit upheld a departure in this case where the defendant was manufacturing false armed forces identification cards. These cards “enabled him (or the individuals he gave the cards to) to enter onto military installations and to have access to military equipment and classified information.” The court found that such access “could significantly endanger national security.” The case was remanded, however, because the district court failed to state reasons for the extent of the departure. U.S. v. Todd, 909 F.2d 395 (9th Cir. 1990).
10th Circuit approves departure for drunk driver who killed entire family. (734) While driving drunk, defendant crashed his car into another car, killing a father, mother, and their infant. The district court departed upward by seven levels, citing the significant danger to public safety, the multiple deaths within a single family unit, and the extreme recklessness of defendant’s conduct. The Tenth Circuit, reviewing the departure de novo under the Prosecutorial Remedies and Tools Against the Exploitation of Children Today Act of 2003, affirmed. First, the district court stated its reasons for the departure “with specificity.” Second, the factors advanced the objectives in § 3553(a)(2) and did not violate any restriction in the Guidelines. Section 5K2.14 specifically provides for an upward departure for a significant danger to public safety “to reflect the nature and circumstances of the offense.” In addition, a court may properly consider the “varying degrees of recklessness” in making its heartland determination. See U.S. v. Whiteskunk, 162 F.3d 1244 (10th Cir. 1998) (sanctioning reliance on defendant’s blood-alcohol level and prior drunk driving convictions in determining the degree of recklessness). Finally, since defendant was convicted of three acts of manslaughter, the fact that multiple deaths occurred could not, by itself, support a departure. However, in killing a mother, father, and infant child, the “normal tragedy of multiple deaths was worsened by the complete elimination of one branch of two different families.” Based on these three factors, defendant’s conduct fell outside the heartland of involuntary manslaughter cases. The seven-level departure was reasonable despite the court’s improper analogy of defendant’s conduct to the brandishing of a firearm. U.S. v. Jones, 332 F.3d 1294 (10th Cir. 2003).
10th Circuit rules voluntary disclosure of offense warranted departure despite inevitable discovery. (734) Defendant was arrested for various violations of a domestic restraining order, While on release, he made false statements to a store in an attempt to purchase a firearm on which he had been making installment payments. He pled guilty to possession of a firearm by a prohibited person. The district court departed down three levels based on a combination of 11 factors, including defendant’s “highly unusual” disclosure of the facts underlying his false statement offense to his pretrial services officer. The Tenth Circuit found no abuse of discretion. Section 5K2.16 says a departure may be warranted if the defendant voluntarily discloses the existence of the offense prior to its discovery. However, disclosures motivated by the defendant’s knowledge that discovery is imminent are excluded. Defendant’s disclosure fell between these two examples. His disclosure was not motivated by fear of detection, but the offense was likely to have been discovered because his estranged wife had given the FBI a receipt relating to the firearm. However, the inevitable discovery did not transform his voluntary disclosure into an impermissible basis for departure. U.S. v. Jones, 158 F.3d 492 (10th Cir. 1998).
10th Circuit finds no double counting in multiple departures. (734) Defendant falsely reported that a gunman was present in a hotel. The 10th Circuit rejected defendant’s claim that it was improper double counting to depart one level for financial loss to the hotel and an additional level for making false statements in a telephone call to the restaurant across the street from the hotel. The hotel and restaurant were separate entities. Nor was it double counting to depart for disruption of a government function under § 5K2.7 and for financial loss to the SWAT team under § 5K2.5. The departure under § 5K2.14 for endangerment of public welfare was also justified. The increases both for disruption of government function and endangerment of public welfare also did not result in double counting because the two provisions do not necessarily overlap and serve different purposes. U.S. v. Flinn, 18 F.3d 826 (10th Cir. 1994).
10th Circuit upholds upward departure for large military theft but remands for court to explain degree of departure. (734) Defendant pled guilty to selling stolen military equipment to undercover FBI agents. The district court departed upward from 37 months to 120 months, based upon the following factors: (a) the $10 million loss was well in excess of the $5 million maximum contained in the guidelines, (b) the disruption of government function caused by the effect defendant’s actions had on the morale and pride of the military, and (c) defendant’s lack of concern for the ultimate destination of the stolen equipment, which could affect national security. The 10th Circuit found that these were all proper grounds for an upward departure. However, to justify the extent of the departure, the district court made only a statement that anything less would have a serious adverse impact upon the pride and morale of the military. The court failed to draw analogies to the guidelines or explain the sentence in guideline terms. The 10th Circuit disagreed with defendant that the judge’s statement, which referred to the judge’s own military service, violated due process. However, the case was remanded for the district court to properly explain its reasons for the extent of the departure. U.S. v. Roth, 934 F.2d 248 (10th Cir. 1991).
11th Circuit approves departure for criminal history and threat to public. (734) The district court departed upward under section 4A1.3 for underrepresentation of defendant’s criminal history and under section 5K2.14 for threat to public safety. First, defendant did not receive criminal history points for a 1987 probation revocation that ran concurrently with another sentence. Second, he received lenient treatment for several of his past convictions. The 11th Circuit agreed that the district court had ample grounds for an upward departure under section 4A1.3 and section 5K2.14. Defendant’s extensive criminal background was a proper consideration in deciding to depart under section 5K2.14. The court could reasonably conclude that illegal possession of a handgun by a career criminal such as defendant posed a threat to public safety substantially in excess of that ordinarily involved in the offense. The extent of the departure was reasonable. When a court departs above criminal history category VI, the sentence is reviewed only for reasonableness. U.S. v. Brown, 9 F.3d 907 (11th Cir. 1993).
11th Circuit upholds upward departure for risk to public safety from pipe bombs and hand grenades. (734) Defendant was convicted of firearms charges after police found homemade pipe bombs and hand grenades in his home. The 11th Circuit affirmed an upward departure based on the uniquely dangerous nature of the pipe bombs and the grenades. Guideline section 5K2.14 authorizes an upward departure if the offense significantly endangered national security, public health or safety. In U.S. v. Loveday, 922 F.2d 1411 (9th Cir. 1991), the 9th Circuit upheld a departure in similar circumstances based upon section 5K2.14 because the defendant’s conduct posed a threat to public safety substantially in excess of that ordinarily involved in offenses under section 2K2.2. The extent of the departure, from a range of 21 to 27 months, to a sentence of 60 months, was reasonable. Although the departure was significant, it was reasonable when compared to the maximum 10 year sentence mandated by statute. U.S. v. Dempsey, 957 F.2d 831 (11th Cir. 1992).
Commission increases penalties for crimes associated with terrorism. (734) The Commission adopted a six-part amendment strengthening the guidelines for crimes associated with terrorism, including offenses against mass transportation systems and interstate gas or hazardous liquid pipelines. The amendment also increased sentences for threats that substantially disrupt governmental or business operations or result in costly cleanup measures. It expanded that guideline coverage of offenses involving bioterrorism, and it created a new guideline for providing material support to foreign terrorist organizations. It punished attempts and conspiracies the same as the completed offense and invited an upward departure to the terrorism enhancement in § 3A1.4 for appropriate cases. Finally, it authorized a term of supervised release up to life for terrorism crimes that result in a substantial risk of death or serious bodily injury. Amendment 637, effective November 1, 2002.
Commission adopts terrorism guideline. (734) Section 120004 of the Violent Crime Control and Law Enforcement Act of 1994 directed the Commission to provide an appropriate enhancement for any felony that involved or is intended to promote international terrorism. In Amendment 526, effective November 1, 1995, the Commission adopted a new §3A1.4 stating that “if the offense is a felony that involved, or was intended to promote, international terrorism, increase by 12 levels; but if the resulting offense level is less than level 32, increase to level 32.” The guideline also increases the defendant’s criminal history category to category VI, and deletes the current upward departure provision at §5K2.15.
Commission authorizes departure for violent street gangs. (734) In Amendment 532, effective November 1, 1995, the Commission adopted a new guideline § 5K2.18 stating that an upward departure may be warranted “if the defendant is subject to an enhanced sentence under 18 U.S.C. § 521, pertaining to criminal street gangs.” The Commission noted that where no violence is established, it is expected that the guidelines will account adequately for the conduct and consequently, “this departure provision would not apply.”