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United States v. Ryan

filed: January 26, 1989.


Greenberg, Scirica, and Weis, Circuit Judges.

Author: Greenberg


GREENBERG, Circuit Judge.

Jeremiah Ryan appeals his sentence of ten months imprisonment for possession of a controlled substance in violation of 21 U.S.C. § 844(a). He contends that the district court's departure from the applicable sentencing guideline was unreasonable. We will affirm.

In December, 1987, a one-count information was filed charging Ryan with possession of a controlled substance with intent to distribute in violation of 21 U.S.C. § 841(a)(1). He pleaded not guilty and a jury trial ensued. Testimony at Ryan's trial established that on November 28, 1987, two police officers approached him while he was sitting on a wall with a brown paper bag in his lap. Ryan dropped the paper bag behind him when he saw the officers coming, and was arrested when the officers retrieved the bag and discovered cocaine base or "crack" inside.

The crack was packaged in 33 small plastic bags, each containing between .2 and .4 grams of the substance, for a total of 10.32 grams. The crack had a concentration of 90 percent by weight. One of the arresting officers testified that, based upon his experience in drug enforcement, the possession of 33 individual packages of crack would suggest that the drugs were not for personal use, but rather for distribution or sale. He further testified that each bag would sell for $25.

The jury acquitted Ryan of the charge of possession with intent to distribute, but found him guilty of the lesser included offense of simple possession of a controlled substance, in violation of 21 U.S.C. § 844(a).

At Ryan's sentencing, the district court, applying the sentencing guidelines to the post-November 1, 1987 offense, departed from the zero to six-month sentence prescribed by the applicable guideline,*fn1 stating that departure was warranted for three reasons: (1) the amount of drugs in Ryan's possession, more than 10 grams; (2) the purity of the drugs; and (3) the packaging of the drugs. The court indicated that it was appropriate to consider thesefactors, not addressed by the Sentencing Commission. The court sentenced Ryan to ten months imprisonment, followed by one year of supervised release, and imposed a 525 special assessment.

On appeal, Ryan maintains that the district court applied the correct sentencing guideline but erred in departing from the guideline. Therefore, our review of Ryan's sentence is governed by 18 U.S.C. § 3742(d)(3), pursuant to which we must determine whether the sentence "outside the range of the applicable sentencing guideline" is "unreasonable."*fn2

The Sentencing Reform Act authorizes departure from the sentence range prescribed by the guidelines if "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. § 3553(b).*fn3 Ryan argues that the Sentencing Commission did consider the factors underlying the district court's departure from the guidelines, and rejected their significance. He points out that the guidelines expressly include quantity of drugs as a relevant sentencing factor for many other drug related offenses,*fn4 and argues that the omission of drug quantity as a sentencing factor in simple possession cases evidences the Commission's implicit but purposeful rejection of its significance under statutory construction principles. He makes a similar argument with regard to the purity of drugs, noting that application note 8 to the guideline for trafficking in controlled substances provides that "unusually high purity may warrant an upward departure" and asserting that the absence of any similar instructionfor simple possession cases is not without significance.*fn5 Ryan further maintains that the district court erred in considering the packaging of the drugs in departing from the sentencing guidelines, maintaining that, in effect, he was sentenced for a crime of which he had been acquitted, and claiming that the guidelines prohibit such an approach. Finally, Ryan asserts that departure from the sentencing guidelines is only warranted under "unusual" circumstances, and that the factors upon which the district court grounded its departure simply do not suffice to make this case an unusual one.

At various points throughout the sentencing guidelines, the drafters provided direction as to when departure from the guidelines is warranted.*fn6 In chapter one, Part A, § 4(b) of the guidelines, the Commission noted that although, in principle, it could have prevented a court from using a particular factor as grounds for departure by specifying that the Commission had adequately considered it, it had declined to do so. The Commission explained that it intended sentencing courts to treat the initial set of guidelines "as carving out a 'heartland,' a set of typical cases embodying the conduct that each guideline describes. When a court finds an atypical case, one to which a particularguideline linguistically applies but where conduct significantly differs from the norm, the court may consider whether a departure is warranted." It continued that with a few specific exceptions, "the Commission does 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."

The Commission went on to explain:

The Commission has adopted this departure policy for two basic reasons. First is the difficulty of foreseeing and capturing a single set of guidelines that encompasses the vast range of human conduct potentially relevant to a sentencing decision. The Commission also recognizes that in the initial set of guidelines it need not do so. The Commission is a permanent body, empowered by law to write and rewrite guidelines, with progressive changes, over many years. By monitoring when courts depart from the guidelines and by analyzing their stated reasons for doing so, the Commission, over time, will be able to create more accurate guidelines that specify precisely where departures should and should not be permitted.

Second, the Commission believes that despite the court's legal freedom to depart from the guidelines, they will not do so very often. This is because the guidelines, offense by offense, seek to take account of those factors that the Commission's sentencing data indicate ...

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