Appeal from the United States District Court for the Western District of Pennsylvania, D.C. Criminal No. 88-22 - Erie.
Becker, Cowen and Seitz, Circuit Judges.
This is an appeal by defendant from concurrent sentences of 24 months imposed after conviction on a two-count indictment charging conspiracy to distribute cocaine and possession of cocaine with intent to distribute subsequent to November 1, 1987.
Defendant first contends that her sixth amendment right to counsel and fourteenth amendment right to a fair trial were prejudicially violated by the conduct of the trial judge.
The first portion of defendant's argument relates to comments made by the judge before the jury was selected. We have examined the remarks and conclude without further elaboration that they fall far short of chilling counsel's ability to fairly represent his client. The defendant next attacks the judge's comments during trial. While some of the judge's comments were unfortunate, whether viewed singly or together, they fail to support a conclusion that defendant was thereby deprived of fair representation or that defendant did not receive a fair trial. Perfect equanimity on the part of a trial judge is not mandated by the Constitution.
Defendant next argues that the following remarks by the Assistant United States Attorney during his closing argument prejudicially violated her fifth amendment privilege against self-incrimination:
More importantly, one thing Mr. Weichler [defendant's counsel] stayed away from throughout was the tape recording [conversation between a former codefendant and this defendant]. This guy is a drug dealer. This person is no good. Do you notice no one ever got up and said anything that could explain away the discussion on that tape? How much was there? Was it 550 then? Ladies and gentlemen, I think I've said it already, but I say it again, the only witness who can't lie. There is nothing that can change that testimony. It has been consistent throughout.
We need not decide whether the comment constituted a constitutional violation because, even if it did, we are satisfied that the statement was harmless error beyond a reasonable doubt. We say this because of the damning testimony of two government witnesses who had originally been indicted along with defendant but who pleaded guilty before trial. A tape recording, to which defendant was a party, and other documentation only added to the great strength of the government's case. Cumulatively viewed, the evidence constituted overwhelming proof that defendant committed the crimes charged.
Finally, defendant argues that certain mitigating factors tendered by defendant were so compelling that they exceeded the extent to which such factors were considered by the Sentencing Commission when it adopted the pertinent sentencing range. Thus, they contend that a deviation below the recommended sentencing guideline range was required. See 18 U.S.C. § 3553(b).*fn1
The defendant's brief notes that at the time of sentence the court identified several mitigating factors:
These mitigating factors included the defendant's cooperation with the government, the absence of a prior criminal record, and exemplary work history, and a lifetime of love and devotion to friends and family. In addition to those mitigating factors, the imposition of a sentence within the recommended guideline range in this case occasions an extreme hardship on the defendant's family.
However, in sentencing defendant, the district court stated:
THE COURT: I find nothing here that permits me to depart from the guidelines, and I am very much guided by them. I recognize all of the favorable points that the defendant has produced, and the best that I can do with those is to apply them to my choice of where within the guidelines the sentence would fall.
Defendant's position is not entirely clear. She may be contending that the district court was laboring under the erroneous impression that it did not have authority to reduce the sentence below the guideline range of 24 to 30 months despite 18 U.S.C. § 3553(b). On this premise, she would necessarily be arguing that the sentence is reviewable, as a matter of law, because of an incorrect understanding of the sentencing guidelines. 18 U.S.C. § 3742(a)(2). United States v. Cheape, 889 F.2d 477 (3d Cir. 1989), United States v. Medeiros, 884 F.2d 75 (3d Cir. 1989), United States v. Russell, 830 F.2d 18 (1st Cir. 1989).
The difficulty with defendant's argument is that we do not read the district court's sentencing remarks as indicating a belief that it lacked the power to deviate downward from the guideline range in a proper case. Rather, as the court said, "I have been asking and trying to get some factor that would justify a deviation, and I just said I haven't found any." One may ask why the district court would be looking for factors that would justify a deviation, if it believed that it lacked authority to deviate. We think the district court did not misunderstand the law in applying the sentencing Guidelines.
Alternatively, defendant may be contending that applying the guideline range to this case does not reflect the atypical nature of the mitigating circumstances present here. 18 U.S.C. § 3553(b) (Supp. V 1987). See United States v. Ryan, 866 F.2d 604, 607 (3d Cir. 1989). The government argues that we lack jurisdiction to entertain defendant's appeal to the extent it is based on a discretionary refusal to depart below the guidelines for the offenses involved. Before we address this issue a preliminary matter must be noted.
Certain language in United States v. Ofchinick, 877 F.2d 251 (3d Cir. 1989) and United States v. Medeiros, 884 F.2d 75, 80 (3d Cir. 1989), can be read to imply that we may review the merits of a discretionary refusal of a district court to depart downward from the sentencing guidelines. However, no appealability question appears to have been raised in these cases. Under such circumstances, Chapter 8c of our Internal Operating Procedures (requiring adherence to our reported past precedent) does not require us to treat Ofchinick and Medeiros as binding in deciding on the government's jurisdictional contention. See United States v. Troup, 821 F.2d 194 (3d Cir. 1987) (lack of jurisdiction in the district court).
We turn now to the jurisdictional issue. We understand defendant to be asserting that the district court abused its discretion in not reducing the sentence below the guideline range because of the atypical nature of the mitigating evidence. The district court, of course, had discretion to grant the request. However, in passing on the request it was required to evaluate the mitigating evidence. This it did and, nevertheless, refused to grant such relief. Surely in such circumstances we cannot review the correctness of such determination unless we first determine that we have jurisdiction to do so.
We look in vain for language governing a defendant's right to appeal the denial of relief under the foregoing circumstances. The portion of the statute providing for appeals by a defendant (18 U.S.C. § 3742)*fn2 simply does not authorize such an appeal. Certainly § 3742(a)(2) (incorrect application of guidelines) does not apply in the present context. Otherwise, as the government suggests, a discretionary refusal to go below the guidelines would seem also to apply to situations in which a defendant challenged an enhanced departure. Such a result would render § 3742(3) largely superfluous.
Finally, although not relied on by the defendant, we do not believe that 18 U.S.C. § 3553(b), (permitting a deviation from the guidelines under certain circumstances), when read with § 3553(a) (factors to be considered in imposing a sentence) converts an unappealable exercise of discretion into an error of law that may be reviewed under § 3742(a)(1) in some amorphous circumstances. If such a result is desirable, it is for Congress to say so.
We conclude that § 3742(a) does not authorize an appeal in the present circumstances. The persuasive analysis of United States v. Colon, 884 F.2d 1550 (2d Cir. 1989) supports our conclusion. See also United States v. Franz, 886 F.2d 973 (7th Cir. 1989); and see also United States v. Fossett, 881 F.2d 976 (11th Cir. 1989). United States v. Lee, 887 F.2d 888 (8th Cir. 1989) is not to the contrary because it involved an appeal from an alleged unlawful sentence.
To the extent this appeal attacks the judgment of the district court on the basis of alleged errors of law by the district court, the judgment will be affirmed. To the extent this appeal attacks the district court's exercise of discretion in refusing to reduce the sentences below the sentencing guidelines, it will be dismissed for lack of appellate jurisdiction.
BECKER, Circuit Judge, concurring in part and dissenting in part.
I join in the majority's opinion insofar as it rejects appellant's fifth, sixth, and fourteenth amendment claims, each of which bears on the validity of her underlying conviction. I disagree strongly, however, with the majority's treatment of the sentencing issues.
As I read the record, the district court felt legally prohibited from departing from the sentencing guidelines. As I see it, whether or not the district court was correct in this regard, the question whether a discretionary refusal to depart is appealable simply does not arise. Because the majority decides that question, however, I address it as well.
Despite its novelty, the question whether refusals to depart are appealable has already provoked sharp disagreement. Compare, e.g., United States v. Colon, 884 F.2d 1550 (2d Cir. 1989) (holding that discretionary refusals to depart are not appealable); and United States v. Franz, 886 F.2d 973 (7th Cir. 1989) (same) with, e.g., United States v. Lee, 887 F.2d 888 (8th Cir. 1989) (discussed below in note 11) and Yellen, "Appellate Review of Refusals to Depart," 1 Fed. Sentencing Rep. 264 (1988) (arguing that discretionary refusals to depart are and should be appealable). The question is difficult, in part because the Sentencing Reform Act (SRA)*fn1 provides no clear answer, and in part because it raises fundamental questions about the administration of justice under the regime of guidelines sentencing. Because of the importance of today's decision, I feel impelled to explain why I disagree with the majority's conclusion that discretionary refusals to depart are not appealable, even though I do not believe that that question is properly before us.
The power of a sentencing court to depart from the guidelines is governed by 18 U.S.C. § 3553(b), which provides that
[the] court shall impose a sentence of the kind, and within the range, referred to in [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 ...