United States v. Curtis Weaver, 936 F.2d 584, 10th Cir. (1991)
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Scribd Government DocsUnited States v. Curtis Weaver, 936 F.2d 584, 10th Cir. (1991)
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Scribd Government Docs936 F.
2d 584
Unpublished Disposition
NOTICE: Tenth Circuit Rule 36.3 states that unpublished
opinions and orders and judgments have no precedential value
and shall not be cited except for purposes of establishing the
doctrines of the law of the case, res judicata, or collateral
estoppel.
UNITED STATES of America, Plaintiff-Appellee,
v.
Curtis WEAVER, Defendant-Appellant.
No. 90-1262.
United States Court of Appeals, Tenth Circuit.
June 26, 1991.
Before LOGAN, JOHN P. MOORE and BALDOCK, Circuit Judges.
ORDER AND JUDGMENT*
LOGAN, Circuit Judge.
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties' request for a decision on the briefs without
oral argument. See Fed.R.App.P. 34(f); 10th Cir.R. 34.1.9. The case is therefore
ordered submitted without oral argument.
Defendant Curtis Weaver appeals the sentence imposed upon him after his
guilty plea to a charge of possession with intent to distribute marijuana in
violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2. The district court
properly calculated the sentencing range applicable to his crime and sentenced
him to the minimum amount of incarceration under the range, twenty-seven
months. Defendant's only argument on appeal is that reversal for resentencing
is necessary because the district court acted under an erroneous belief that it did
not have discretion to depart downward from the sentencing range.
Defendant's argument is based on statements made by the district court during
Defendant's argument is based on statements made by the district court during
defendant's sentencing hearing. During that hearing, defense counsel pointed
out that defendant suffered from a significant learning disability and came from
an unstable childhood home. Counsel further highlighted defendant's
rehabilitation efforts since his arrest, including substantial improvements in his
family life and eight months of sobriety following years of alcoholism. Counsel
concluded by asking the court to explain to defendant that despite these factors,
probation simply was not a sentencing option under the guidelines. See III R.
13-14. In response the court stated:
Well, I think [defense counsel] is correct that the hands of judges have been tied
in exceptional cases by the sentencing guidelines, which, while the offense is
very serious, and the crime is very serious, the attitude that you have shown and
the ability to build on a--to build a very bright future on a rather shaking
passion [sic] that you have been demonstrating through sheer effort and
discipline, with the help of apparently a wonderful wife, was one that would
have, had the law been as it was just a few years ago, made this a case where I
could consider probation, but I can't consider that. The Congress won't let me
do that. I don't like that, and, in fact, I held it was unconstitutional but the
Supreme Court of the United States didn't agree with me. So all I can do is
impose a sentence that's required in this case.
III R. 15.
It is the law of this circuit that a discretionary refusal of the district court to
depart downward below the sentencing guidelines is not appealable or
reviewable. See, e.g., United States v. Adams, 914 F.2d 1404, 1409 (10th Cir.),
cert. denied, 111 S.Ct. 588 (1990). But we will remand if we believe the district
court has misapprehended its power to depart, see United States v. MaldonadoCampos, 920 F.2d 714, 718 (10th Cir.1990). Also, if we are in doubt as to
whether the court understood its authority to depart downward, we will remand
to the district court for clarification. See United States v. Lowden, 900 F.2d
213, 217-18 (10th Cir.), cert. denied, 111 S.Ct. 206 (1990).
A district court undoubtedly may depart downward if it finds certain
extraordinary circumstances are present. See, e.g., United States v. Pena, 930
F.2d 1486, 1496 (10th Cir.1991) (upholding district court's decision to depart
downward based on defendant's "long employment history, the abberational
nature of her conduct, and the fact that two infants would be deprived of
support if she were incarcerated"); United States v. Sklar, 920 F.2d 107, 116
(1st Cir.1990) (downward departure might be warranted by defendant's
rehabilitation between arrest and sentencing if so extraordinary as to not have
been taken into account by guidelines); United States v. Deigert, 916 F.2d 916,
918-19 (4th Cir.1990) (defendant's tragic personal background and family
history would support downward departure if circumstances were
extraordinary). Our review of the record, however, convinces us that the instant
district court understood that it possessed such power.
8
Taken in context, the court's statement that its hands were tied by the guidelines
does not suggest a misunderstanding of its departure powers. The court was
simply responding to trial counsel's request that it inform defendant that
probation was not a sentencing alternative in the instant case. Any doubts about
this are resolved by the following question the court asked defendant before
accepting his guilty plea: "Do you understand that after it's been determined
what guideliens [sic] apply to a case, the judge has the authority, in some
circumstances, to impose a sentence that's more severe or less severe than the
sentence called for by the guidelines?" II R. 15.
Accordingly, defendant's sentence is AFFIRMED.
This order and judgment has no precedential value and shall not be cited, or
used by any court within the Tenth Circuit, except for purposes of establishing
the doctrines of the law of the case, res judicata, or collateral estoppel. 10th
Cir.R. 36.3
