United States v. Dorrier , 89 F. App'x 794 ( 2004 )

Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
2-19-2004
USA v. Dorrier
Precedential or Non-Precedential: Non-Precedential
Docket No. 03-1726
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"USA v. Dorrier" (2004). 2004 Decisions. Paper 994.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 03-1726
UNITED STATES OF AMERICA
v.
JOHN L. DORRIER, JR.,
Appellant
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
(D.C. Criminal No. 02-cr-00156)
District Judge: The Honorable William L. Standish
Submitted Under Third Circuit LAR 34.1(a)
January 30, 2004
Before: NYGAARD and FUENTES, Circuit Judges
O’NEILL*, District Judge
(Filed : February 19, 2004)
*Honorable Thomas N. O’Neill, Jr., United States District Judge for the Eastern
District of Pennsylvania, sitting by designation.
OPINION OF THE COURT
O’NEILL, District Judge
Appellant John L. Dorrier, Jr. appeals the District Court’s decision not to grant a
downward sentencing departure. Dorrier asserts that the District Court misunderstood the
sentencing guidelines and mistakenly concluded that it had no authority to grant a
downward departure based on family responsibilities. We conclude that the District
Court in fact considered the possibility of reducing appellant’s sentence because of his
family circumstances but determined that the circumstances were not sufficiently
extraordinary to warrant a downward departure. We therefore lack jurisdiction to review
the District Court’s decision not to grant a departure and will affirm
I.
Because we write only for the parties, our factual summary is brief. On November
14, 2002, Dorrier pled guilty to one count of embezzlement from a labor union in
violation of 29 U.S.C. §501(c); one count of making, uttering and possessing forged
securities in violation of 18 U.S.C. § 513(a); and one count of corrupt interference with
the administration of the tax laws in violation of 26 U.S.C. § 7212(a). Dorrier, a senior
shop business agent for Operating Engineers Local Union 66, organized informational
picketing activities and prepared picket expense vouchers so that picketers could be paid.
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He abused his role however and filed 976 false picket vouchers in 104 different names.
He then forged the names of the payees on the checks issued by the union so that he could
cash them and deposit them in his bank account, thus illegally obtaining a total of $137,
645. Dorrier used Social Security numbers of other people on picket expense vouchers
and checks to avoid the payment of income taxes. Upon questioning, he admitted his
forgeries to union officials and also admitted to trying to ensure that the total picket
expense checks for any one individual did not exceed $600, the threshold amount for
which the IRS required a 1099 form.
The government agreed to recommend a two-level reduction in Dorrier’s offense
level for acceptance of responsibility in accordance with Section 3E1.1 of the sentencing
guidelines. With a resulting offense level of 13 and a criminal history category of I,
Dorrier’s guideline range of imprisonment was from 12 to 18 months.
Dorrier filed a presentence memorandum requesting a downward departure
pursuant to U.S. Sentencing Guidelines Section 5H1.6 based on his allegedly
extraordinary family responsibilities. During the sentencing hearing, counsel for Dorrier
argued his incarceration would cause a hardship on his wife who was in poor health,
suffering from diabetes, hypertension and several other conditions, and in need of
assistance with basic daily tasks such as walking and bathing. The District Court found it
“regrettable” that Dorrier’s wife was ill and recognized that he had been her primary
caretaker. The Court also found that Dorrier’s wife had one son who worked in the area
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and might be available to help her despite long work hours and another son who would be
released from incarceration “very soon” and might also contribute to her care. Despite
Dorrier’s loss of income from incarceration and the aforementioned circumstances, the
District Court found that the family circumstances were not so extraordinary as to warrant
a decrease in Dorrier’s sentence.
The Court imposed a sentence of twelve months and one day on each of the counts
of conviction, with the sentences to run concurrently. Dorrier subsequently filed a timely
notice of appeal.
II.
The Court of Appeals “lack[s] jurisdiction to review a refusal to depart downward
when the district court, knowing it may do so, nonetheless determines that departure is
not warranted.” United States v. McQuilkin, 97 F.3d 723, 729 (3d Cir. 1996). According
to Dorrier, however, the applicable standard of review is plenary because the District
Court misunderstood the sentencing guidelines and mistakenly concluded it had no
authority to grant a downward departure based on his extraordinary family circumstances.
This was not the District Court’s finding. A review of the record shows that, rather than
finding that it could not grant a downward departure, the District Court merely concluded
that the facts of Dorrier’s case did not warrant a reduction in his sentence. A clearly
discretionary determination by the District Court is not reviewable. United States v. Sally,
116 F.3d 76, at 78 (3d Cir. 1997). We therefore lack jurisdiction to review appellant’s
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case.
Dorrier’s argument stems from this statement by Judge Standish at sentencing: “I
don’t feel that I can grant a downward departure, given the circumstances of this case.” 1
While not as clear as a statement, for example, that “I recognize my authority to depart
from the sentencing guidelines, but exercise my discretion not to do so based on the facts
of this case,” these magic words are not required. See United States v. Georgiadis, 933
F.2d 1219, 1223 (3d. Cir. 1991) (“[W]e conclude that the Sentencing Reform Act does
not require a district court to state that it has considered, and refused to make a
discretionary downward departure.”).
Appellant argues that the sentencing ruling is ambiguous and it is unclear whether
the denial of the departure was based on legal or discretionary grounds thus requiring the
sentence be vacated and the case remanded for resentencing. See, e.g., United States v.
Powell, 269 F.3d 175, 179-80 (3d Cir. 2001) (remanding the case for clarification of the
district court’s rejection of defendant’s motion for a downward departure where no ruling
was made on the motion); United States v. Evans, 49 F.3d 109, 111-12 (3d Cir. 1995)
(finding the district court’s statement that “I hold that I do not have the power to apply a
1
This statement does not clearly indicate that the District Court believed it lacked
discretion to grant a downward departure. Contrast United States v. Dominguez, 296 F.3d
192, 199 (3d Cir. 2002) (internal quotation marks omitted), where the district court stated
on the record that it was “inclined to depart . . . but felt that it lacked discretion to do so.”
There we held that the district court’s conclusion that it lacked discretion to grant a
downward departure based upon family circumstances was in error. Id. at 193-94.
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lesser guideline or to make a downward departure” sufficiently ambiguous to require
vacating the sentence and remanding where defendant's actions could satisfy the
departure requirements); and United States v. Mummert, 34 F.3d 201, 205-06 (3d Cir.
1994) (vacating and remanding because the record did not make clear whether the district
court’s denial of departure was based on legal or discretionary grounds). Contra United
States v. Stevens, 223 F.3d 239, 247 (3d Cir. 2000) (finding “that the district court's
comments were not sufficiently ambiguous as to require vacatur and remand”). However,
when read in context, there is no ambiguity here. It is clear that Judge Standish’s
statement is an acknowledgment that there is nothing “extraordinary” about Dorrier’s
situation that could justify a downward departure and not a statement of doubt as to his
authority to grant a downward departure.
If Judge Standish believed that the option of granting a downward departure for
extraordinary family circumstances was unavailable, it is unlikely he would have taken
the time to investigate appellant’s circumstances. Instead he noted that Dorrier had
submitted letters from his wife and from her doctor detailing her health problems
including diabetes, hypertension, morbid obesity, and generalized osteoarthritis. Judge
Standish further asked counsel for appellant and the government to elaborate on the
motion for downward departure at the sentencing hearing.
In United States v. Sweeting, 213 F.3d 95 (3d Cir. 2000), we considered whether a
downward departure was appropriate under Section 5H1.6 due to a defendant’s
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extraordinary family ties and responsibilities. Noting that Section 5H1.6 of the
Guidelines provides that family ties and responsibilities are “not ordinarily relevant” in
determining an offender’s sentence, we found that sentencing departures based on the
existence of such ties and responsibilities are “discouraged” and should occur “only in
exceptional cases.” Id. at 99 (citations and internal quotations omitted). We reversed the
district court’s decision granting a departure from the sentencing guidelines where the
defendant was a single mother and sole provider for five children including one who
suffered from Tourette’s Syndrome, a substantial neurological disorder. Nothing in the
record indicated that Sweeting, although a single parent, was “irreplaceable” and nothing
suggested the type of care that her son required was “so unique or burdensome that
another responsible adult could not provide the necessary supervision and assistance in
Sweeting’s absence.” Id. at 104-05.
Nothing in the record here indicates that appellant is an indispensable caretaker for
his wife or that his family circumstances are otherwise extraordinary. Dorrier argued that
without his care and income, Mrs. Dorrier would be the one who suffered most from his
incarceration. Nothing in the record, however, suggests that he is the only person who
could provide his wife with the care she may require. Even though a person may need
one-on-one care, it “does not lead to the conclusion that [the appellant] is the only person
capable of providing it.” Sweeting, 213 F.3d at 109. Dorrier failed to offer evidence that
his wife’s needs were so unique or extensive that another adult could not care for her
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while he was incarcerated. Family disruption and loss of income are a common, rather
than extraordinary, outcome when a family member is incarcerated.
After considering appellant’s circumstances, the District Court concluded that
there was nothing extraordinary about Dorrier’s family responsibilities to justify a
downward departure. It did not, as appellant argues, fail to consider the possibility of
granting a downward departure based on family circumstances.
III.
For the foregoing reasons, we will affirm the judgment of sentence imposed by the
District Court.
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