United States v. Pettiford , 93 F. App'x 253 ( 2004 )

Not for Publication in West's Federal Reporter
Citation Limited Pursuant to lst Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 03-1624
UNITED STATES OF AMERICA,
Appellee,
v.
GARY C. PETTIFORD,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ronald R. Lagueux, Senior U.S. District Judge]
Before
Selya, Circuit Judge,
Coffin and Cyr, Senior Circuit Judges.
Jennifer A. Appleyard, by appointment of the court, on brief
for appellant.
Craig N. Moore, Acting United States Attorney, Donald C.
Lockhart and Zechariah Chafee, Assistant United States Attorneys,
on brief for appellee.
March 30, 2004
Per Curiam. Defendant-appellant Gary C. Pettiford
pleaded guilty to two counts of bank robbery in violation of 18
U.S.C. § 2113(a). The district court, taking note of Pettiford's
long criminal record, sentenced him on April 22, 2003 as a career
offender, USSG §4B1.1(a)-(b), to a 151-month incarcerative term.
Pettiford now appeals. His able counsel, heroically trying to do
much with little, has raised two issues. Despite the excellence of
counsel's efforts, neither warrants extended discussion.
First, Pettiford argues that the district court erred in
denying his motion for a downward departure on the ground that the
career offender designation overstated the gravity of his criminal
history. See id. §4A1.3. The principal problem with this argument
— there are several others, but we need not reach them — is the
general rule that a sentencing court's discretionary refusal to
depart is unreviewable. See United States v. Sanchez, 354 F.3d 70,
76 (1st Cir. 2004); United States v. Pierro, 32 F.3d 611, 619 (1st
Cir. 1994). At first glance, that rule seems to control here
because the decision whether to grant an "overstatement" departure
pursuant to section 4A1.3 lies primarily within the discretion of
the sentencing court.
Pettiford acknowledges this fact, but says that his case
falls within an exception to the unreviewability doctrine because
the sentencing court misapprehended its authority to depart. Such
an exception does exist. See United States v. Teeter, 257 F.3d
-2-
14, 30 (1st Cir. 2001) (discussing this exception). However, the
record belies any suggestion that the exception pertains here.
No useful purpose would be served by a blow-by-blow
account of the colloquy at the disposition hearing. The short of
it is that the sentencing court voiced some uncertainty about its
authority to depart in the circumstances of this case,1 but made it
perfectly clear that, if it had such authority, it would choose, as
a matter of discretion, not to exercise that discretion in
Pettiford's favor. No more was exigible. See, e.g., United States
v. Londono-Quintero, 289 F.3d 147, 155 (1st Cir. 2002); United
States v. DeLeon, 187 F.3d 60, 69 (1st Cir. 1999).
Pettiford's attempt to blunt the force of this
alternative holding fails. He wrests a single sentence in the
district court's bench decision from its contextual moorings and
attempts to use that sentence to prove his point. However, in
answering questions of this sort, appellate courts must read the
record as a whole. DeLeon, 187 F.3d at 69. On an holistic view,
there is no plausible basis for a claim that the district court
misunderstood the extent of its authority. See United States v.
Grandmaison, 77 F.3d 555, 564-65 (1st Cir. 1996) (explaining that
mere ambiguity in the sentencing record is insufficient to render
1
The sentencing court's uncertainty was warranted. This
court, sitting en banc, has divided equally over whether district
courts may grant "overstatement" or "smallness" departures in
career offender cases. See United States v. Perez, 160 F.3d 87,
88-90 (1st Cir. 1998) (en banc) (per curiam).
-3-
the court's refusal to depart reviewable on appeal). This
assignment of error is, therefore, not properly before us.
Pettiford's second assignment of error is no more
rewarding. In it, he vigorously challenges a reckless endangerment
enhancement, see USSG §3C1.2, proposed by the probation department
and arguably accepted by the district court.2 The difficulty,
however, is that this enhancement dropped out of the case once the
district court completed its factfinding and sentenced Pettiford
under the alternative career offender formulation. See United
States v. Ventura, 353 F.3d 84, 90 (1st Cir. 2003) (describing the
alternative sentencing calculations required in career offender
cases). The propriety of the proposed enhancement is, therefore,
immaterial. See, e.g., United States v. Frazier, 340 F.3d 5, 7-8
(1st Cir.), cert. denied, 124 S. Ct. 971 (2003); United States v.
Ruiz-Garcia, 886 F.2d 474, 476 (1st Cir. 1989).
We need go no further. Shortly after the initial
promulgation of the federal sentencing guidelines, we wrote that
"[s]entencing appeals prosecuted . . . in the tenuous hope that
lightning may strike, ought not to be dignified with exegetic
opinions, intricate factual synthesis, or full-dress explications
of accepted legal principles." Ruiz-Garcia, 886 F.2d at 477. That
2
This proposed enhancement was based on Pettiford's behavior
when the arresting officer initially attempted to apprehend him.
For reasons that soon will become apparent, the details need not
concern us.
-4-
apothegm applies here. Consequently, we content ourselves with
this brief description of why we reject Pettiford's appeal and
summarily affirm his conviction and sentence.
Affirmed. See 1st Cir. R. 27(c).
-5-