United States v. Whitaker ( 1998 )


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  •                                                                               F I L E D
    United States Court of Appeals
    Tenth Circuit
    PUBLISH
    AUG 17 1998
    UNITED STATES COURT OF APPEALS
    PATRICK FISHER
    Clerk
    FOR THE TENTH CIRCUIT
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    v.                                                  No. 97-5203
    JOHN HUDSON WHITAKER,
    Defendant - Appellant.
    APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE NORTHERN DISTRICT OF OKLAHOMA
    (D.C. No. 96-CR-12-H)
    Submitted on the briefs:
    Gerald L. Hilsher of Shipley, Jennings & Champlin, P.C., Tulsa, Oklahoma, for
    Defendant-Appellant.
    Stephen C. Lewis, United States Attorney, and Allen J. Litchfield, Assistant United States
    Attorney, Office of the United States Attorney, Tulsa, Oklahoma, for Plaintiff-Appellee.
    _________________________
    Before ANDERSON, McKAY, and LUCERO, Circuit Judges.
    _________________________
    McKAY, Circuit Judge.
    _________________________
    After examining the briefs and appellate record, this panel has determined
    unanimously that oral argument would not materially assist the determination of this
    appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered
    submitted without oral argument.
    Defendant appeals the sentence imposed on him by the district court following his
    plea of guilty to conspiracy to travel interstate to facilitate a narcotics enterprise in
    violation of 18 U.S.C. § 1952(a)(3). He asserts that the district court erred by refusing to
    depart downward from the sentencing range applicable under the U.S. Sentencing
    Guidelines because of his post-offense rehabilitation efforts. The district court found that
    it lacked the authority to consider this factor as a basis for downward departure, based on
    our holding in United States v. Ziegler, 
    39 F.3d 1058
    , 1061 (10th Cir. 1994). See R., Vol.
    II at 432, 435. However, after this court decided Ziegler, the Supreme Court held in
    Koon v. United States that any potential basis for a downward departure not specifically
    prohibited by the Sentencing Commission may be considered by a district court. See
    Koon v. United States, 
    518 U.S. 81
    , 108-09 (1996). We conclude that Koon allows
    exceptional efforts at drug rehabilitation to be considered as a basis for a downward
    departure from the applicable guideline sentence because these efforts were not expressly
    forbidden as a basis for departure by the Sentencing Commission. Therefore, we vacate
    the sentence imposed and remand to allow the district court to consider whether
    Defendant’s rehabilitation efforts were extraordinary or exceptional, and thus an
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    appropriate basis for a downward departure.
    Defendant filed a Motion for Downward Departure prior to sentencing, asserting
    that his exemplary post-offense efforts at rehabilitation, including community service and
    his continued drug-free status, provided a basis for a downward departure from the
    applicable sentencing range. The district court rejected Defendant’s argument that the
    Supreme Court’s holding in Koon effectively overruled this court’s holding in Ziegler
    that even extraordinary efforts at drug rehabilitation could not be a basis for a downward
    departure. Despite Defendant’s numerous objections, the district court adopted the
    findings of the presentence report and imposed the maximum guideline sentence of sixty
    months imprisonment.
    This court may “exercise jurisdiction to review a sentencing court’s refusal to
    depart from the sentencing guidelines [only] in the very rare circumstance that the district
    court states that it does not have any authority to depart from the sentencing guideline
    range for the entire class of circumstances proffered by the defendant.” United States v.
    Castillo, 
    140 F.3d 874
    , 887 (10th Cir. 1998). When a district court does not correctly
    understand its authority to depart from the guidelines this court may exercise jurisdiction
    to review the refusal to grant a departure. See United States v. Contreras, 
    59 F.3d 1038
    ,
    1040 (10th Cir. 1995).
    District courts must impose a criminal sentence within the range resulting from a
    proper application of the U.S. Sentencing Guidelines “unless the court finds that there
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    exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately
    taken into consideration by the Sentencing Commission in formulating the guidelines that
    should result in a sentence different from that described.” 18 U.S.C. § 3553(b). In
    Ziegler we held that the fact that defendant made extraordinary efforts at drug
    rehabilitation was not a mitigating factor not adequately taken into consideration by the
    guidelines, and, therefore, efforts at rehabilitation could not be a basis for departure. See
    
    Ziegler, 39 F.3d at 1061-62
    .
    After we decided Ziegler, the Supreme Court “illuminated” the analysis a court
    should employ to determine when it may depart from the applicable guideline range.
    United States v. Brock, 
    108 F.3d 31
    , 33 (4th Cir. 1997). The Supreme Court stated that a
    federal court reviewing a decision to depart must first determine whether the Sentencing
    Commission actually proscribed consideration of the proposed basis for departure. See
    
    Koon, 518 U.S. at 109
    .
    Thus, the unmistakable teaching of Koon is that only those factors on which
    the Commission has forbidden reliance–e.g., drug or alcohol dependence or
    abuse; race, sex, national origin, creed, religion, or socioeconomic status;
    lack of youthful guidance or similar circumstances indicating a
    disadvantaged upbringing; personal financial difficulties or economic
    pressure on a trade or business–never may provide an appropriate basis for
    departure. All others potentially may provide a basis for departure under
    appropriate circumstances.
    
    Brock, 108 F.3d at 34-35
    (citations omitted) (overruling United States v. Van Dyke, 
    895 F.2d 984
    , 986-87 (4th Cir.), cert. denied, 
    498 U.S. 838
    (1990)). Although addiction and
    abuse are excluded from consideration as an appropriate basis for departure, this
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    prohibition does not expressly forbid consideration of post-offense drug rehabilitation
    efforts. Therefore, rehabilitation may provide a basis for departure. See 
    Brock, 108 F.3d at 35
    .
    Additionally, the correct inquiry for whether a potential basis for departure was
    considered by the Sentencing Commission focuses on whether the potential basis is
    addressed by the “guidelines, policy statements, or official commentary and whether it is
    encompassed within the heartland of situations to which the guidelines were intended to
    apply.” 
    Brock, 108 F.3d at 33
    . Because rehabilitation efforts are taken into consideration
    when determining a defendant’s eligibility for an acceptance of responsibility guideline
    adjustment, see U.S.S.G. § 3E1.1(a) commentary at n.1(g), post-offense rehabilitation can
    only be an appropriate ground for downward departure if the efforts are of a magnitude
    that the defendant’s situation cannot be considered typical of those where an acceptance
    of responsibility adjustment is granted.1 See 
    Koon, 518 U.S. at 93-96
    (emphasizing that
    before a court exercises its discretion to depart the defendant must establish the existence
    of unique circumstances which remove the case from the “heartland” of the applicable
    guideline, presenting a situation where departure is truly warranted); United States v.
    Kapitzke, 
    130 F.3d 820
    , 823 (8th Cir. 1997); United States v. Sally, 
    116 F.3d 76
    , 79 (3d
    Cir. 1997); 
    Brock, 108 F.3d at 34
    ; United States v. Barton, 
    76 F.3d 499
    , 504 (2d Cir.
    The court granted Defendant a three-level adjustment for acceptance of
    1
    responsibility. See R., Vol. II at 354, 435.
    -5-
    1996); United States v. Williams, 
    948 F.2d 706
    , 710-11 (11th Cir. 1991); United States v.
    Sklar, 
    920 F.2d 107
    , 115-17 (1st Cir. 1990). A defendant’s efforts at drug rehabilitation
    are to be evaluated by the same standards as a defendant’s efforts at any other form of
    rehabilitation.
    Because the district court’s decision was premised on our holding in Ziegler,
    which has been effectively overruled by Koon,2 we REMAND to the district court to
    determine whether Defendant is entitled to a downward departure from the sentence
    applicable under the guidelines based on his efforts at drug rehabilitation. We have
    reviewed Defendant’s other claims for relief and find them without merit.
    REMANDED.
    2
    “[A] single panel is permitted to reconsider a previous Tenth Circuit decision to
    the extent the new [Supreme Court] case law invalidates our previous analysis.” Hurd v.
    Pittsburg State Univ., 
    109 F.3d 1540
    , 1542 (10th Cir. 1997).
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