United States v. Washington ( 1998 )


Menu:
  • UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    v.                                                                   No. 96-4915
    KERVIN O'KEITH WASHINGTON,
    Defendant-Appellant.
    Appeal from the United States District Court
    for the Northern District of West Virginia, at Elkins.
    Robert Earl Maxwell, Senior District Judge.
    (CR-96-7-2)
    Submitted: October 31, 1997
    Decided: January 15, 1998
    Before ERVIN and WILKINS, Circuit Judges, and
    BUTZNER, Senior Circuit Judge.
    _________________________________________________________________
    Affirmed in part, vacated, and remanded by unpublished per curiam
    opinion.
    _________________________________________________________________
    COUNSEL
    Gregory A. Elam, Elkins, West Virginia, for Appellant. William D.
    Wilmoth, United States Attorney, Sherry L. Muncy, Assistant United
    States Attorney, Elkins, West Virginia, for Appellee.
    _________________________________________________________________
    Unpublished opinions are not binding precedent in this circuit. See
    Local Rule 36(c).
    _________________________________________________________________
    OPINION
    PER CURIAM:
    Kervin O'Keith Washington pled guilty to being a felon in posses-
    sion of a firearm, 
    18 U.S.C.A. § 922
    (g)(1) (West Supp. 1997), and
    received a sentence of 120 months imprisonment. He appeals his sen-
    tence, arguing that the district court clearly erred in denying him an
    adjustment for acceptance of responsibility. See U.S. SENTENCING
    GUIDELINES MANUAL § 3E1.1 (1995). He also contends that the district
    court failed to recognize its authority to depart downward for lesser
    harms, USSG § 5K2.11, p.s., and erred in refusing to modify his bond
    conditions to permit him to cooperate with the government in a drug
    investigation. Finally, Washington maintains that his sentence vio-
    lates the Eighth Amendment. We affirm in part, but vacate the sen-
    tence and remand for resentencing.
    Washington admitted pawning the .25 caliber pistol which he was
    charged with possessing. However, he gave conflicting accounts of
    who owned the firearm. He also incurred a new charge of driving on
    a suspended license while free on bond before he was sentenced, and
    he tested positive for cocaine use on three occasions. The district
    court may consider new criminal conduct, even when it is unrelated
    to the offense of conviction, in determining the sincerity of the defen-
    dant's acceptance of responsibility. See United States v. Ceccarani,
    
    98 F.3d 126
    , 129-30 (3d Cir. 1996) (post-offense conduct can shed
    significant light on sincerity of defendant's claimed remorse), cert.
    denied, ___ U.S. ___, 
    65 U.S.L.W. 3586
     (U.S. Feb. 24, 1997) (No.
    96-7616); United States v. Byrd, 
    76 F.3d 194
    , 197 (8th Cir. 1996);
    United States v. McDonald, 
    22 F.3d 139
    , 142-44 (7th Cir. 1994);
    United States v. Pace, 
    17 F.3d 341
    , 343 (11th Cir. 1994), cert. denied,
    ___ U.S. ___, 
    66 U.S.L.W. 3255
     (U.S. Oct. 6, 1997) (No. 96-2025);
    United States v. O'Neil, 
    936 F.2d 599
    , 600-01 (1st Cir. 1991); United
    States v. Watkins, 
    911 F.2d 983
    , 985 (5th Cir. 1990); but see United
    States v. Morrison, 
    983 F.2d 730
    , 733-35 (6th Cir. 1993) (new unre-
    2
    lated criminal conduct should not be considered). We are persuaded
    by the weight of authority and find that the court did not clearly err
    here.
    Next, Washington contends that the district court mistakenly
    believed that it lacked authority to depart on the ground that he
    pawned the pistol to buy food for his family. Our review is de novo.
    See United States v. Hall, 
    977 F.2d 861
    , 863 (4th Cir. 1992). A depar-
    ture is encouraged under the guidelines when the sentencing court
    finds that the defendant committed the crime in order to avoid a per-
    ceived greater harm, see USSG § 5K2.11, and the court was well
    aware of this fact. Washington bases his argument on the court's
    statement that, although his offense was not the violent kind that Con-
    gress may have had in mind, it was "within the four corners of the
    congressional statute and the Court must be bound by that." The court
    went on to add that, because of the nature of the offense, it would not
    upwardly depart pursuant to USSG § 4A1.3, p.s., as the probation
    officer recommended. However, because of Washington's back-
    ground and criminal history, the court found that a downward depar-
    ture was not appropriate. We find that the court was aware of its
    authority to depart for lesser harms and properly exercised its author-
    ity not to depart.
    Washington also argues that the district court erred when it refused
    to modify his bond conditions to permit him to associate with drug
    traffickers so that he could cooperate with the government in a drug
    investigation, thus precluding him from earning a downward depar-
    ture for substantial assistance under USSG § 5K1.1. He relies on
    United States v. Goossens, 
    84 F.3d 697
    , 703 (4th Cir. 1996), in which
    this court found that the district court abused its discretion when it
    prohibited the defendant from cooperating with authorities as a condi-
    tion of bond and refused to consider his request for a downward
    departure on that basis under USSG § 5K2.0.
    Here, too, the government moved for modification of Washington's
    bond to enable the government to gain evidence about drug dealing
    in a remote area where the government had been unsuccessful. Wash-
    ington's case differs from Goossens because Washington did not
    request a downward departure on the ground that he had been pre-
    vented from cooperating. However, Washington preserved his objec-
    3
    tion to the court's denial of the government's first request for
    amendment of the bond conditions by joining in the government's
    request for reconsideration of that order.
    To insure a defendant's appearance as required or to protect the
    public safety, the district court has statutory authority to prohibit a
    defendant who has been released pending trial to abide by restrictions
    on personal associations, as the court did here. See 
    18 U.S.C.A. § 3142
    (c)(1)(B)(iv) (West Supp. 1997). A prohibition on a defen-
    dant's cooperation with law enforcement officials is not appropriate
    absent extraordinary circumstances which make such a condition
    "truly necessary to assure a defendant's appearance or protect the
    public safety." Goossens, 
    84 F.3d at 703
    . In Goossens, the court pro-
    hibited the defendant from making contact with others involved in
    illegal activity out of a belief that cooperation of this kind would
    retard the defendant's rehabilitation. In so doing, the court "impose[d]
    itself in matters that are not properly within its province." Goossens,
    
    84 F.3d at 704
    .
    In Washington's case, the court did not explain the basis for its
    decision to deny the government's motion for amendment of bond
    conditions. However, in both cases, the effect was the same. Like the
    defendant in Goossens, Washington was prevented from cooperating
    in the only manner in which he could assist the government and earn
    a substantial assistance departure. Under Goossens, the court abused
    its discretion unless its decision was grounded in some extraordinary
    circumstance which is not apparent from the record. Consequently,
    we vacate the sentence and remand for further proceedings. On
    remand, the district court should consider whether a departure is war-
    ranted because Washington was prohibited by the court from cooper-
    ating with law enforcement authorities. The inquiry should be
    "whether [the] defendant's cooperation likely would have been such
    that the Government would have moved for a departure based upon
    substantial assistance had the defendant's cooperation not been fore-
    closed improperly." 
    Id.
    Last, Washington argues that the sentence imposed was dispropor-
    tionate to his offense and thus violates the Eighth Amendment.
    Because Washington will be resentenced, we need not reach this
    issue. However, we note that extensive proportionality review is not
    4
    appropriate for sentences of less than life without possibility of
    parole. See United States v. D'Anjou, 
    16 F.3d 604
    , 613 (4th Cir.
    1994). Washington's ten-year sentence (the statutory maximum) was
    within his guideline range and was not disproportionate to the crime.
    We therefore affirm the district court's findings in part but vacate
    the sentence and remand for resentencing in accordance with this
    opinion. We dispense with oral argument because the facts and legal
    contentions are adequately presented in the materials before the court
    and argument would not aid the decisional process.
    AFFIRMED IN PART, VACATED, AND REMANDED
    5