United States v. Holmes , 112 F. App'x 72 ( 2004 )

Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 03-1854
UNITED STATES,
Appellee,
v.
RICHARD RYAN HOLMES,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Morris E. Lasker, Senior U.S. District Judge]
Before
Torruella, Circuit Judge,
Campbell, Senior Circuit Judge,
and Selya, Circuit Judge.
William M. White, Jr., and Davis, Robinson & White, LLP, on
brief for appellant.
Michael J. Sullivan, United States Attorney, and Dina Michael
Chaitowitz, Assistant U.S. Attorney, on Motion for Summary
Disposition.
October 14, 2004
Per Curiam. Ryan Holmes pled guilty to one count of
manufacturing counterfeit money. After violating conditions of his
pre-trial release, Holmes was ordered to enter an in-patient drug
treatment program. At the time of sentencing, he had successfully
completed the program, had been drug-free for seven months and had
obtained employment. In sentencing Holmes, the district court
granted a two-level reduction in his base offense level for
acceptance of responsibility and sentenced him at the low end of
the applicable guideline sentencing range (33 months). However,
the court denied Holmes' request for a downward departure based on
pre-sentence rehabilitation. Holmes is appealing from that denial.
The government has filed a motion for summary affirmance. The
government posits that the district court's denial represents an
unreviewable exercise of its discretion. The government further
contends, however, that the meaning of the district court's
ambiguous explanation for its denial need not be resolved because
affirmance is appropriate where, as in this case, it is clear that
there is no colorable basis for a departure. We agree that
affirmance is warranted on these grounds.
This court cannot review "a discretionary decision not to
depart on the facts of the particular case." United States v.
Rodriguez, 327 F.3d 52, 54 (1st Cir. 2003). However, we may "review
a refusal to depart where the refusal rests upon a legal mistake,
such as a mistaken assumption that a particular ground is
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generically impermissible as a basis for departure." Id. Holmes
argues that the district court's refusal to depart falls within the
latter category, while the government characterizes it as within
the former category.
The sentencing judge stated that he believed he lacked
authority to grant the departure on the grounds requested. He made
an apparent reference to the PROTECT Act (effective 4/30/03), which
he noted had further restricted the authority of federal judges to
grant departures, and concluded that he was "legally prevented"
from granting a downward departure. See 18 U.S.C. § 3742(e). He
referred to the possibility of an appeal. Neither the ambiguity of
the district court's statement nor the expressed intent that the
defendant be permitted to appeal his sentence settles the question
of reviewability. See Rodriquez, 327 F.3d at 55; United States v.
Morrison, 46 F.3d 127, 131 (1st Cir. 1995).
Based upon a careful review of the sentencing transcript and
defendant's motion for a downward departure, we agree with the
government that "the district court merely meant that in addition
to the absence of extraordinary facts supporting a departure, the
PROTECT Act's de novo review requirements also militated against
departure." Government's Motion for Summary Disposition, p. 5. The
district court stated that it lacked authority to depart "under the
practices [defendant] propose[s] in [his] motion" and "on the
grounds that are included in the request." At the time of this
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sentencing, it was well established that "[i]n an appropriate case,
. . . extraordinary presentence rehabilitation can ground a
downward departure." United States v. Craven, 239 F.3d 91, 99 (1st
Cir. 2001) ("Craven I").
"The PROTECT Act changed the standard of review applied to
departures from the guidelines, eliminating the deference
previously accorded to a district court's application of the
guidelines to the facts of the case." United States v. Derbes, 369
F.3d 579, 581 (1st Cir. 2001). The sentencing court's statements
do not establish that the district court fundamentally
misinterpreted the effect of the PROTECT Act as eliminating all
discretion to grant a downward departure for extraordinary pre-
sentence rehabilitation. Nor do we agree with appellant that the
district court's statements of approval of appellant's apparent
success in overcoming his drug addiction represented a finding that
his efforts were "extraordinary." Instead, it appears that the
court's refusal to depart was based upon its conclusion that a
departure on the facts of this case would be reversed by this court
applying the de novo standard of review applicable under the
PROTECT Act. As such, the district court's discretionary
determination that the facts supporting the request for downward
departure did not rise to the level of "extraordinary" pre-sentence
rehabilitation, is not reviewable by this court.
In the alternative, even if the district court's departure
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denial could fairly be interpreted to rest upon a legal mistake,
remand would not be necessary. This court has held that even where
the district court mistakenly believed it lacked authority to
depart, "where the record provides no basis for departure on any
ground, we are not required to remand to the District Court."
United States v. Gendraw, 337 F.3d 70, 72 (1st Cir. 2003); see
United States v. Mayes, 332 F.3d 34, 37 (1st Cir. 2003); Rodriguez,
327 F.3d at 55. This is such a case because the facts supporting
appellant's departure request do not warrant a departure for
extraordinary pre-sentence rehabilitation.
"[I]t is well settled that a defendant's efforts to overcome
his drug addiction, while certainly commendable, will ordinarily
not support a downward departure." United States v. Sklar, 920 F.2d
107, 117 (1st Cir. 1990). This is especially so where such efforts
"were largely prompted by the specific mandates of his pretrial
release agreement." Id. Even overcoming drug addiction is not
"the equivalent of extraordinary rehabilitation nor a guaranteed
ticket to a downward departure on that basis." Craven I, 239 F.3d
at 100. In several cases, this court has reversed departures for
extraordinary rehabilitation based on a defendant's efforts to
purge himself of addiction. See e.g., United States v. Craven, 358
F.3d 11, 15 (1st Cir. 2004) ("Craven II"); Sklar, 920 F.2d at 117;
see also United States v. Rushby, 936 F.2d 41, 43 (1st Cir. 1991)
(affirming refusal to depart on basis of pre-sentencing
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rehabilitation, including successful treatment for drug and alcohol
addiction).
Based on our precedents, a departure in Holmes' case for
extraordinary pre-sentence rehabilitation would not be warranted.
Essentially, the departure was sought on the basis that Holmes has
successfully participated for several months in the drug treatment
program that the court ordered him to enter. Although he had been
a cooperative and enthusiastic participant and had voluntarily
participated in addiction recovery groups and obtained employment,
those factors do not distinguish his case from Sklar or Rushby.
Appellant argues that his case is different because of his
difficult and abusive family history and his long history of
substance abuse and drug addiction, without prior counseling or
treatment. However, "drug addiction [and] a troubled childhood .
. . do not constitute permissible bases for departing below the
[guideline sentencing range]. See U.S.S.G. §§ 5H1.4; 5H1.12."
Mayes, 332 F.3d at 37 n.4. In a nutshell, the circumstances of this
case do not "indicate the existence of meaningfully atypical
rehabilitation." Sklar, 920 F.2d at 117.
The district court's denial of appellant's motion for a
departure from the guideline sentencing range is affirmed. The
sentence appealed from is, therefore, affirmed.
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