United States Court of Appeals

For the First Circuit

No. 00-1086

UNITED STATES OF AMERICA,

Appellant,

v.

JOHN LARKIN THOMPSON, a/k/a MOMO,

Defendant, Appellee.

CRIMINAL JUSTICE ACT BOARD,

Intervenor.

NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS,

Intervenor.

[Hon. Nancy Gertner, U.S. District Judge]

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

Before

 Torruella, Chief Judge,

Bownes, Senior Circuit Judge,

and Boudin, Circuit Judge.
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Adam J. Bookbinder, Assistant United States Attorney, with

whom, Donald K. Stern, United States Attorney, was on brief for

appellant.

Joan M. Griffin, with whom Casner & Edwards, LLP, was on

brief for appellee.

Charles W. Rankin, Michelle Menken, and Rankin & Sultan on

brief for Criminal Justice Act Board and Lisa B. Kemler on brief

for National Association of Criminal Defense Lawyers, amici

curiae.

December 8, 2000
1 The defendant pled guilty to sufficient facts for the

assault and battery of his fiancée Breii Murray. In the PSR, it

is noted that Ms. Murray advised that she started the fight and

did not want to press charges. The defendant was released on

probation and, according to Ms. Murray, this was the only time

Thompson hit her. The record supports the conclusion that this

was a unique occurrence.

In September of 1998, the police stopped the

defendant's car and found in his mouth two plastic bags of crack

cocaine. His older daughter was with him in the car. He was

not arrested but summoned to court. Thompson denied any drug

involvement and the case was, ultimately, filed without a change

of plea.

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BOWNES, Senior Circuit Judge. Determining that the

defendant exhibited an extraordinary family situation and

employment history, the district court (Gertner, J.) departed

downward from the guideline sentencing range (GSR) of 87 to 108

months of incarceration and sentenced the defendant to the

mandatory minimum of 60 months in prison, followed by 48 months

of supervised release. Finding that the district court erred as

a matter of law when sentencing the defendant, we vacate the

defendant's sentence and remand for resentencing in accordance

with this opinion.

I.

We recount the facts as stipulated in the Pre-Sentence

Report (PSR): At the time of his arrest, the defendant-appellee

John Thompson was a 24-year-old African-American male. He had

one prior conviction and was never incarcerated.1 He lived his
His criminal record also included the following:

possession with intent to distribute class D and class B

controlled substances, both charges were ultimately dismissed;

an arrest for drinking alcohol in a public way, which was

dismissed; and possession with intent to distribute a class B

substance, which was filed without a change of plea. 

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entire life in the Bromley Heath Housing Development in

Massachusetts. He described his childhood as “rough”; the

majority of it was spent without his father, who was

incarcerated much of the time. Thompson dropped out of high

school in the eleventh grade when he learned that his

girlfriend, Breii Murray, was pregnant with their first child.

Ms. Murray and the defendant have been in a steady relationship

for seven years and are engaged to be married. They have two

daughters together. Ms. Murray received a Certificate in

Business Administration from the Roxbury Community College but

does not work so that she can spend more time with her

daughters. 

The PSR indicates that Thompson is a good father who

spends much time with his daughters and enjoys a solid

relationship with both of them, particularly Jabria, his older

daughter. He supports his fiancée, their children, and his

fiancée's family both economically and emotionally. Ms.

Murray's mother, Jessica Gonzalez, is very supportive of the

defendant and considers him to be like a son. Likewise, Ms.
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Murray's aunt, Ethel Ejiofor, and her grandmother, Ms. DuBois,

are supportive of the defendant. In fact, the defendant resided

with them while he was out on bail. They describe the defendant

as a wonderful person who has made substantial contributions to

the upkeep of their home by running errands and doing chores,

and financial contributions of $100 per week. They consider

Thompson to be a member of their immediate family. All of the

women stressed that the defendant is a good man and a wonderful

father, and indicated that the defendant's incarceration would

detrimentally impact their lives and specifically the lives of

his daughters. Letters were submitted to the court from Ms.

Gonzalez and Ms. Murray that support the PSR's appraisal of

Thompson's family life.

The PSR also indicates that the defendant was employed

almost consistently from the time he left high school because of

his fiancée's pregnancy. Thompson obtained many jobs through a

local union, of which he became a member. At the time of his

arrest, he was employed by M. Solberg Enterprises Corp. and

earned about $2,000 per month setting planks, drilling cords and

cutting concrete. His employer provided the district court with

a letter in support of his bail and indicated that he was wanted

back at his job and would be welcomed.

II.
2 Section 2D1.1(c)(4) of the U.S.S.G. provides a base

offense level of 32 if the offense conviction involved at least

50 grams but less than 150 grams of cocaine base. The district

court noted that: “Although Thompson pleaded to one count of

distribution involving 23.6 grams of cocaine base, U.S.S.G. §

1B1.3(a)(2) provides that a defendant can be held accountable

for all acts that 'were part of the same course of conduct or

common scheme or plan as the offense of conviction.' Therefore,

in calculating Thompson's base offense level, the government

used the aggregate of four sales made to undercover agents for

a total of 51.8 grams.”

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A federal grand jury indicted the defendant on

narcotics violations stemming from an investigation of crack

cocaine trafficking at the Bromley Heath Housing Development.

Pursuant to a plea agreement, the defendant pled guilty to one

count of distributing cocaine base in violation of 21 U.S.C.

§ 841(a)(1). 

The district court held a sentencing hearing on August

4, 1999, and August 11, 1999. The defendant had a base offense

level of 32 pursuant to the United States Sentencing Guideline

(U.S.S.G.) § 2D1.1(c)(4) (1998).2 The defendant's offense level

was reduced three levels because of his acceptance of

responsibility and timely plea, pursuant to U.S.S.G §§ 3E1.1(a)

& (b), and he rated a criminal history category of I, pursuant

to U.S.S.G. Chapter 5, Part A. The defendant, therefore, fell

within the guideline range of 87 to 108 months in prison. The

defendant moved for a downward departure to the mandatory
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minimum of 60 months in prison based on his extraordinary family

obligations and employment history. 

At the first sentencing hearing, the district court

noted that “extraordinary family obligations” is a “very

difficult category to meet.” She continued: “I'm not going to

rule at this moment, but from what I've seen, I don't think that

this comes close . . . .” Then the district court continued the

sentencing hearing until August 11th and invited the defendant

to present more information on his family and employment.

At the second hearing, the district court heard from

the defendant himself and accepted letters written on his

behalf. After hearing argument from both sides, the district

judge found that the defendant exhibited extraordinary family

ties and responsibilities and employment history, and departed

downward to the statutory minimum sentence of 60 months. The

district court stated, in pertinent part:

The guidelines permit me to depart for

extraordinary family obligations. And the

last time I looked at this case from one set

of eyes and thought that these were really

not – this didn't rise to the level of

extraordinary. Since last week, I have done

more work and reconsidered that.

As I said before, the question of what

is ordinary is nowhere defined. There's no

– the Sentencing Commission doesn't tell us

this is the ordinary situation. We are all

guessing at what's ordinary. And in the

course of making those guesses, we feed in
3 This was the last mention of “extraordinary

rehabilitation.” The district court departed on the sole

grounds of extraordinary family obligations and employment

history and that is all we discuss today.

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our stereotypes, our biases, cultural,

racial, gender, etc. And I want to feed

them out of it. I want to see if I can

distill them out of this picture, my biases.

Where I grew up, families were intact

and the kinds of things that you're

describing were not unusual. The kinds of

relationships that you're describing were

not unusual.

In other settings in this country, the

kinds of things that you're describing are

unusual. And, in my experience as a judge

and before that as a lawyer, it was not

usual to find the kinds of profiles that you

present, Mr. Thompson, of someone with

intact employment, going out of his way to

do the things for his children under the

circumstances that you have.

* * * * 

It seems to me that by any fair

definition of extraordinary – that's not, by

the way, as I said, the way I was raised,

it's not the way others in this courtroom

were raised. But certainly, in the

communities that I have seen, your

relationship to your children, your older

daughter, is extraordinary.

* * * * 

So I will – and I will write this up

– I will depart to take into account your

extraordinary family obligations,

commitments to work, and what I believe to

be an extraordinary rehabilitation,3 as well.
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* * * * 

I will depart, based on my findings of

extraordinary family ties and

responsibilities – and I will write this up

– under 5H1.6, I will depart also based upon

your employment record, 5H1.5. And,

likewise, I will depart because of your

extraordinary family obligations. And I

will depart to a level 25. You're at

Criminal History 1. And I will sentence you

to 60 months.

Neither party objected to the sentencing. Three months later,

the court issued its sentencing memorandum and judgment. In it,

the court grappled with the question of how to determine if the

defendant demonstrated an “extraordinary” family circumstance or

employment history. It stated in pertinent part:

What is the standard by which to judge

“extraordinary” family obligations or an

“extraordinary” work history? What class of

defendants define “ordinary”? While the

Sentencing Commission and the case law offer

little guidance on the subject, one thing is

clear: The baseline is not, nor should it

be, “Ozzie and Harriet,” the fictional two

parent, two child, suburban home. In a

sentencing regime whose aim is to eliminate

unwarranted disparities between similarly

situated offenders, “ordinary” should be

determined by comparing this defendant with

others convicted of the same crime.

Here, I compared the defendant, who

was convicted of crack cocaine sales, with

others convicted of the same offense in my

court, and indeed, throughout the District

of Massachusetts. I reviewed not only my

own records of previous sentences, but also

presentence reports of individuals sentenced

by other judges within the District.
4 “Discouraged factors” are defined as factors “not

ordinarily relevant to the determination of whether a sentence

should be outside the applicable guideline range. . . .

[A]lthough these factors are not ordinarily relevant to the

determination of whether a sentence should be outside the

applicable guideline range, they may be relevant to this

determination in exceptional cases.” 1998 U.S.S.G. ch. 5, pt.

H, intro. cmt; see also United States v. Koon, 518 U.S. 81, 95

(1996). Family ties and responsibilities and employment record

are discouraged factors. See U.S.S.G. §§ 5H1.6 (family) and

5H1.5 (employment).

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* * * *

First, I have drawn on my own experience as

a judge. In addition, I have reviewed the

presentence reports for offenders similarly

situated to Thompson with respect to place

(the Bromley Heath projects), time (1998),

and offense (sale of crack cocaine), and

more generally, I have reviewed the PSR's

[sic] of those convicted of crack cocaine

sales in this jurisdiction in 1998 and 1999.

(Emphasis added). This may seem to make sense, but it is

contrary to the law of this circuit.

In United States v. DeMasi, 40 F.3d 1306, 1324 (1st

Cir. 1994), we held that when a district court contemplates a

downward departure based on a discouraged factor,4 it must

compare the defendant to others who exhibit that factor, not to

others who have been convicted of the same offense. We held

that the district court erred in sentencing the defendant, “by

restricting the scope of its comparison to only bank robbery

cases.” Id. at 1324. We continued: “A court should survey

those cases where the discouraged factor is present without
5 We have considered whether Koon has overruled DeMasi,

as urged by the appellant and amicus, and are not persuaded by

the suggestion. Whether DeMasi should be modified in light of

subsequent developments, including case law in other circuits,

is a matter not for the panel but for an en banc petition.

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limiting its inquiry to cases involving the same offense, and

only then ask whether the defendant's record stands out from the

crowd.” Id. (emphasis added).

Here, the district court did what DeMasi forbids: it

limited its inquiry to cases involving crack cocaine dealers and

then asked whether Thompson's record stood apart from the rest.

Thus, the district court erred as a matter of law.5

III.

For the reason stated above, we vacate the defendant's

sentence and remand for resentencing. The court may sentence

the defendant within the applicable GSR or the court may

sentence the defendant by comparing him to others with family

responsibilities and significant employment histories, or a

combination of the two, regardless of the offense of which they

have been convicted. If it does so, it should provide the

parties with all material not already included in the record

that it intends to consider in determining the sentence and

allow the parties time to object or comment before any sentence

is imposed. We can defer to another day deciding whether and
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when the district court may in sentencing appropriately rely on

material that is not made available to both sides.

Vacated and remanded with instructions.