The case involves Philip Scott Ashburn, who pled guilty to two counts of bank robbery under 18 U.S.C. § 2113(a) as part of a plea agreement, leading to the dismissal of other counts and the non-prosecution of additional attempted robberies. The district court initially determined a sentencing range of 63 to 78 months based on the Federal Sentencing Guidelines but found this insufficient considering Ashburn’s criminal history and risk of recidivism. Consequently, the court imposed an upward departure, sentencing him to 180 months in prison.
Ashburn appealed the sentence, which was partially affirmed, but the appellate panel required a remand due to the district court's improper consideration of the dismissed indictment counts and inadequate justification for the departure under Section 4A1.3. Upon en banc review, the court concluded that the upward departure was not improper and affirmed the district court's sentence.
The background reveals that Ashburn had a previous conviction for armed bank robbery in 1984, resulting in a six-year sentence, which contributed to a Criminal History Category of II. His presentence report indicated multiple other bank robberies, leading to a Total Offense Level of 25 after enhancements and reductions. The district court's intention to depart upward was supported by testimony from an FBI agent regarding Ashburn's involvement in additional robberies.
Agent Eckert conducted an interview with April Jeanette English, a co-defendant of Ashburn, who claimed Ashburn confessed to committing two robberies in December 1991 and January 1992. These robberies were confirmed and charged in counts 1 and 2 of Ashburn's indictment. English also reported that Ashburn called her on April 17, 1992, from Key West, Florida, stating, "I just did a job," coinciding with a bank robbery reported that day. Additionally, Eckert testified to Ashburn's involvement in attempted robberies at the Watauga State Bank and Arlington National Bank in July 1992.
The district court determined that Ashburn's Criminal History Category II did not adequately reflect his past conduct or his risk of reoffending, leading to an upward departure in sentencing. Ashburn received concurrent 180-month sentences on counts 3 and 4, along with a 3-year supervised release and a mandatory $100 assessment. On appeal, Ashburn argued that the district court miscalculated his offense level and criminal history category, and made errors in its upward departure decision. The appellate panel found his objections to the calculations unmeritorious but noted that the district court did not sufficiently explain the reasons for its upward departure. The panel majority also stated that the dismissed counts from the plea bargain should not have influenced the upward departure.
The dissent contended that the plea agreement did not prevent the district court from using the dismissed counts to enhance Ashburn's sentence. The case was ordered to be reheard en banc. The court affirmed Ashburn's appeal regarding the offense level and criminal history calculations but sought to reconsider the panel's findings on the district court's departure. Under 18 U.S.C. 3553, a district court may depart upward if it identifies an aggravating circumstance not accounted for by the Sentencing Commission. The district judge must articulate the reasons for any imposed sentence, especially if it deviates from the Guidelines. The appellate court reviews upward departures for abuse of discretion, affirming them if the reasons provided are acceptable and reasonable. Ashburn's argument against the consideration of the prior robberies for upward departure was deemed unpersuasive.
Circuits are divided on whether a defendant benefits from a plea bargain when a district court departs upward based on dismissed indictment counts. The Third and Ninth Circuits rule against such benefits, while the Second and Tenth Circuits support using prior criminal conduct related to dismissed counts for upward departures. The latter view is favored in this context. Under U.S.S.G. 4A1.3, a court may depart upward if a defendant’s criminal history does not accurately reflect past conduct or the risk of future crimes, with subsection (e) allowing consideration of prior unconvicted conduct. No legal restrictions were found preventing the district court from considering dismissed counts for upward departures.
Guidelines regarding plea agreements do not contradict this. U.S.S.G. 6B1.2 allows plea agreements that dismiss charges if remaining counts reflect the seriousness of the offense. Ashburn, who pled guilty to two counts of bank robbery, argued that this plea’s acceptance conflicted with a subsequent upward departure. However, the court upheld the district court's finding that the two-count plea adequately reflected Ashburn's conduct, while acknowledging the possibility of upward departure if the criminal history category was insufficient. The plea agreement did not suggest that dismissed counts could not be considered for sentencing decisions. The agreement also clarified that there were no guarantees regarding the sentence or guideline range, indicating that a departure could occur based on relevant information.
An upward departure from the sentencing guidelines under section 4A1.3 is justified when a defendant's Criminal History Category fails to accurately reflect the severity of their criminal history or the risk of reoffending. In United States v. Lambert, it was established that a district court must assess intermediate criminal history categories and provide a rationale for its decision, explaining why the calculated category is inappropriate. The court does not need to mechanically discuss each rejected category if the reasons for the departure are evident from its explanation.
In this case, the district judge expressed concern over the defendant Ashburn’s history of bank robberies in 1983 and subsequent robberies in 1991 shortly after his release. The court noted that Ashburn's criminal history calculation, based solely on a 1984 robbery conviction, underestimated the seriousness of his actions and the likelihood of future crimes. The judge calculated that Ashburn would have had nine additional points for other robberies, resulting in a Criminal History Category of V and a hypothetical guideline range of 100 to 125 months. The court also referenced unconvicted robberies and attempted robberies that were not prosecuted, concluding that these factors warranted a significant upward departure from the guidelines. Consequently, Ashburn was sentenced to 180 months in prison, correlating to Criminal History Category VI and an offense level of 29. The district court's justification effectively demonstrated the inadequacy of the recommended sentencing range. Although the court did not specifically evaluate each intervening category, the rationale for the departure was clear, and no detailed explanation was deemed necessary under the circumstances.
The sentence in this case, which exceeded the guideline range by more than two times, was upheld as reasonable despite being a significant departure. The court noted that this departure was not as extreme as those previously approved. The district court justified its decision by considering the defendant's extensive past criminal behavior, which was not reflected in his criminal history score, and the likelihood of reoffending. The conclusion affirmed the reinstatement of certain parts of the panel opinion while vacating others.
In dissent, Judge Goldberg emphasized the need for a more restrained approach regarding the information considered by sentencing courts when deviating from guidelines. He criticized the majority for allowing an upward departure to a sentence of 180 months, which he deemed unjustified and excessive given that the guidelines suggested a minimum of 63 months. Goldberg argued that the court improperly considered dismissed charges to augment the defendant's criminal history category and failed to provide sufficient justification for such an extensive departure. The majority defended its stance by citing U.S.S.G. 4A1.3, asserting that sentencing courts have the discretion to consider unaccounted factors when determining sentences.
The majority argues that the sentencing commission did not account for dismissed charges when augmenting a defendant's Criminal History Category. They reference U.S.S.G. 1B1.4 to assert that a sentencing court may consider any relevant information about a defendant, which supports a broad range of information for potential departures from sentencing guidelines. The majority contends that considering dismissed charges does not undermine Ashburn's plea bargain, as the agreement lacked specific sentence length guarantees.
However, the discussion critiques this triad of arguments as weak and unsupported. It highlights U.S.S.G. 4A1.3, which suggests that dismissed charges should not be included in the Criminal History Category, as the sentencing commission likely did not intend for such consideration. The control over what information sentencing courts may use is a key tool for maintaining order in sentencing. The doctrine of negative implication is noted, indicating that if the commission has already considered a factor, it should not be a basis for departure.
Additionally, the 1992 amendment to U.S.S.G. 6B1.2 allowed for the consideration of dismissed charges in augmenting the Relevant Conduct Category, implying that the commission deliberated on this issue and chose not to extend it to the Criminal History Category. Consequently, the majority's reliance on U.S.S.G. 4A1.3 is viewed as misplaced. The majority's interpretation of U.S.S.G. 1B1.4, which allows for consideration of a defendant’s background, is also challenged, suggesting that it leads to the opposite conclusion regarding the use of dismissed charges in sentencing.
Section 1B1.4 of the U.S.S.G. allows sentencing courts to use any lawful information when deviating from sentencing guidelines. The majority found no legal barrier preventing a district court from considering dismissed counts in an upward departure from guidelines. However, U.S.S.G. 6B1.2(a) and Fed. R. Crim. P. 11(e) suggest that sentencing should reflect the seriousness of the offense as outlined in plea agreements, raising questions about the validity of considering dismissed counts. Chief Judge Breyer questioned the rationale for accepting a plea bargain if the resulting sentence does not adequately reflect the defendant's conduct. Despite this, the majority maintained that the court could accept the guilty plea yet reject the agreed sentence if it deemed the sentence insufficient for the seriousness of the crime or recidivism risk. Critics argue this interpretation undermines Rule 11(e).
The majority referenced U.S.S.G. 1B1.4 commentary, which permits sentencing at the upper end of the guideline range based on dismissed charges but does not justify departures beyond that range. The commentary indicates that while courts have discretion within the guidelines, they cannot exceed them based on dismissed charges.
Lastly, the majority addressed whether considering dismissed charges violates the defendant's expectations from the plea agreement, asserting that the plea lacked language preventing the use of dismissed counts in sentencing. This interpretation suggests that a defendant's reasonable expectations from a plea bargain are constitutionally protected but are not breached in this case, as the agreement did not explicitly limit the use of dismissed charges.
In the plea bargain agreement, the prosecution agreed not to pursue dismissed charges. The majority contends that Ashburn's expectations were fulfilled since it was the sentencing court, not the prosecution, that considered the dismissed charges in determining a sentence. However, the majority's argument suggests that defendants do not expect a reduction in prison time when certain charges are dismissed, which requires a deeper analysis of the implications of having a charge dismissed. Dismissed charges provide significant benefits, primarily the avoidance of prison time. For defendants facing multiple charges, the dismissal of some may not significantly alleviate their overall situation, as they often plea to reduce their potential sentence.
The majority's stance is criticized as unrealistic, as it overlooks a defendant's reasonable expectation that dismissed charges will not impact their sentencing. Ashburn, for instance, received a sentence of 180 months, nearly double the upper limit of nine years he would have faced if tried on all charges. This outcome raises concerns about the fairness of plea agreements, as the majority's interpretation leads to harsher penalties than if Ashburn had opted for trial. Moreover, the sentencing court's justification for upwardly departing from sentencing guidelines based on Ashburn's Criminal History Category and dismissed counts was deemed unnecessary. The court should have considered rejecting the plea bargain under Fed. R. Crim. P. 11(e) if it believed the agreement was too lenient rather than using dismissed charges to justify a longer sentence.
If the leniency of a plea agreement only became clear after the presentence investigation, the sentencing court should have allowed Ashburn to withdraw his guilty plea. Rejecting the plea agreement could have prompted further negotiations that might have led to a more accurate representation of Ashburn's potential sentencing. Ashburn needed to be informed that he could face additional prison time due to dismissed charges; without this knowledge, his waiver of rights in pleading guilty was not knowing or informed. The trial court must ensure that guilty pleas are made knowingly, as established in Boykin v. Alabama and North Carolina v. Alford. The majority's opinion, which permits dismissed charges to be reconsidered at sentencing, undermines this requirement.
The plea bargaining process is essential to the criminal justice system, providing benefits to defendants and society by reducing case loads and allowing for negotiated resolutions. However, the majority's reasoning may destabilize this process, making it difficult for defendants to assess the implications of plea agreements if courts can overlook agreed-upon terms at sentencing. This unpredictability may lead more defendants to reject plea deals and opt for trials instead. Additionally, the majority's stance on the adequacy of departure justifications in sentencing lacks support, as previously defined standards require sentencing courts to provide acceptable and reasonable reasons for any departures.
To depart under U.S.S.G. 4A1.3, a sentencing court must first consider increasing the defendant's Criminal History Category to the next level and continue to subsequent levels if necessary. The court is expected to articulate why the original category is inappropriate and justify the chosen category. However, it is not required to mechanically discuss each rejected category. The sentencing guidelines aim to bring order to a complex process, allowing for departures when unforeseen factors arise, but reasonable articulation is necessary to uphold the guidelines' integrity.
In this case, the sentencing court's justifications for its departure were deemed inadequate. The court's rationale, which occupied only about one and a half double-spaced pages, merely noted that if the defendant had been convicted of dismissed counts, his Criminal History Category would be higher. It also referenced past robberies and attempted robberies without sufficient detail. The court concluded that the defendant's current category did not reflect his background, warranting a significant upward departure. However, the justification essentially repeated phrases from the U.S.S.G. 4A1.3 policy statement regarding the likelihood of reoffending and the seriousness of past conduct, lacking substantive analysis. The court's articulation fell short of the reasonableness threshold required by the guidelines.
The reasonableness requirement for justifying departures in sentencing necessitates more than a mere repetition of statutory language; otherwise, such justifications become hollow, undermining the goals of the sentencing guidelines. Reasonable minds may differ on adequacy, yet if the explanations from the sentencing court are deemed reasonable, it sets a low bar for what can be classified as unreasonable. The sentencing court's brief justifications are particularly concerning given the significant degree of departure in Ashburn's case—his sentence was nearly triple the guidelines recommendation. The majority's assertion that this departure did not warrant detailed scrutiny is questioned, especially since the departure's magnitude seems to demand a thorough explanation.
Furthermore, the grounds for departure are problematic. The court relied on robberies from the early 1980s to elevate Ashburn's Criminal History Category from level V to VI, potentially referencing a robbery from 1984 for which he was convicted. If so, this could lead to improper double counting, as his presentence report already accounted for that conviction. Additionally, the court included dismissed charges and an unindicted robbery in its justification, incorrectly assigning three criminal history points to them as if they were full convictions, thus failing to differentiate between actual convictions and other criminal activities. This raises concerns about the appropriateness of applying the same criminal history point value to both prior convictions and other past conduct, which could undermine the defined purpose of establishing a Criminal History Category based on prior convictions.
The excerpt highlights a circuit split regarding the use of dismissed charges to enhance the Criminal History Category. The Second and Tenth Circuits permit this practice, as seen in *United States v. Kim* and *United States v. Zamarripa*, while the Third and Ninth Circuits prohibit it, as referenced in *United States v. Thomas* and *United States v. Castro-Cervantes*. The dissenting opinion expresses concern that the case's complexity, particularly due to the defendant's unlikable character, has led to a flawed legal precedent. Circuit Judge Harold R. DeMoss, Jr. emphasizes that the majority's approval of the district judge's upward departure from sentencing guidelines is erroneous. The district judge relied on dismissed robbery counts and older robberies to justify the upward departure. DeMoss argues that assuming convictions on the dismissed counts contradicts the plea agreement and misapplies the guideline which allows for consideration of prior conduct not resulting in conviction. He points out that such assumptions would convert the dismissed counts into additional convictions, which should be processed under different guideline sections, thereby altering the offense level calculations. The dissent concludes with a reminder of the implications of incorrectly applying these sentencing rules.
Assuming convictions for dismissed counts and attributing three criminal history points to each as if they were actual convictions undermines the criminal history point structure set by the guidelines. If prior similar conduct without a conviction carries the same weight as a conviction, the distinction between the two disappears. Under Rule 11(e) of the Federal Rules of Criminal Procedure, a district judge can accept or reject a plea deal that includes dismissed counts, deferring the decision until after reviewing the presentence report. In this case, the judge perceived the defendant's sentence as too lenient and opted to reject the plea agreement, compelling the defendant to either plead guilty to all charges or face trial. This approach necessitates a multiple count analysis under section 3D1.1, which focuses on the combined offense level rather than criminal history. However, the judge's reliance on "assumptions" led to a sentence that was double what would have been prescribed had the defendant pled guilty to all counts. The judge's use of past robberies from the 1980s to justify exceeding the criminal history category is similarly flawed, as it involves dismissed counts from both the current and prior indictments. This practice opens the door for extensive upward adjustments, which could lead to significant legal repercussions. The majority's affirmation of the judge's interpretation aligns with rulings from the Tenth and Second Circuits but misapplies these precedents, as neither addressed the use of dismissed counts from previous indictments. This sets a troubling new precedent that could have unintended consequences for the application of the guidelines.
The district judge's reasoning regarding the "early 1980s robberies" was vague, lacking clarity compared to the previous counts. He stated that considering these robberies would elevate the criminal history category beyond Category VI but did not specify the number of robberies or the points attributed to each, as he did for other robberies. No special circumstances were articulated to justify this adjustment. As a result, the judge increased the sentence from the guideline range of 100-125 months to 180 months. The majority opinion supports this decision by referencing Lambert, arguing that the upward departure is comparable on a percentage basis to that in Lambert. However, the dissent emphasizes that the substantial increase in the sentence from a guideline of 63-78 months to 180 months necessitates a more thorough explanation, as indicated in Lambert, which the district judge failed to provide.
