1995 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

2-28-1995

USA v Evans

Precedential or Non-Precedential:

Docket 94-1546

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Recommended Citation

"USA v Evans" (1995). 1995 Decisions. Paper 64.

http://digitalcommons.law.villanova.edu/thirdcircuit_1995/64
 UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 ___________ 

 No. 94-1546 

 ___________ 

 UNITED STATES OF AMERICA 

v. 

 FRANK JOSEPH EVANS, 

 Appellant 

 _______________________________________________ 

 On Appeal from the United States District Court 

 for the Eastern District of Pennsylvania 

 (D.C. Criminal No. 92-cr-00689-5) 

 ___________________ 

 Submitted Pursuant to Third Circuit LAR 34.1(a) 

 November 3, 1994 

 Before: GREENBERG, SCIRICA and LEWIS, Circuit Judges

 (Filed: February 28, l995 ) 

 L. FELIPE RESTREPO, ESQUIRE 

 Krasner & Restrepo 

 924 Cherry Street, 2nd Floor 

 Philadelphia, Pennsylvania 19107 

 Attorney for Appellant 

 FRANCIS C. BARBIERI, JR., ESQUIRE 

 Office of the United States Attorney 

 615 Chestnut Street 

 Philadelphia, Pennsylvania 19106 

 Attorney for Appellee 
 __________________ 

 OPINION OF THE COURT 

 __________________ 

SCIRICA, Circuit Judge. 

 Frank Joseph Evans and nine other defendants were 

charged in a 25-count indictment with conspiracy and drug 

trafficking offenses. On April 21, 1993, Evans pled guilty to 

conspiracy to distribute more than five kilograms of cocaine (21 

U.S.C. § 846 (1988)) and criminal forfeiture (21 U.S.C. § 853 

(a)(1)-(2) (1988)). On July 8, 1993, the defendant filed a pro 

se motion to withdraw his guilty plea which was denied on October 

15, 1993. On May 9, 1994, the defendant was sentenced to 360 

months imprisonment followed by five years supervised release. 

He was also ordered to pay a special assessment of $50 and a fine 

of $1,000. We will vacate the defendant's sentence and remand to 

the district court for resentencing. 

I. 

 The defendant was arrested in Houston, Texas on July 

20, 1992, while operating a motor vehicle containing 36 kilograms 

of cocaine in a concealed compartment. He identified himself to 

law enforcement officers as Frank Evans and produced a 

Pennsylvania driver's license which confirmed this information. 

On at least three subsequent court appearances, including his 

change of plea hearing, the defendant identified himself as Frank 

Evans. 
 The defendant's true identity was first learned when he 

disclosed it to a probation officer after he pled guilty but 

before his sentencing. The government, through fingerprint 

comparison, confirmed the defendant was in fact Ronald Dawkins. 

Dawkins had a prior criminal record and was wanted as a parole 

absconder and fugitive in South Carolina. 

 At sentencing, the district court rejected the 

government's contention that the defendant obstructed justice by 

giving law enforcement officials a false name and denied the 

defendant's request for a downward departure based upon his 

disclosure of his true identity. The court then sentenced the 

defendant to 360 months imprisonment.1

II. 

 The district court may depart from the applicable range 

calculated under the United States Sentencing Guidelines where 

"the court finds that there exists an aggravating or mitigating 

 

1. The presentence report determined the defendant's base 

offense level to be 40 because of his participation in the 

delivery of between 500 and 700 kilograms of cocaine. This was 

supported by testimony presented by the government at the 

sentencing hearing. The base level was increased by two for the 

defendant's role as a manager in the organization under U.S.S.G. 

§ 3B1.1(c) and decreased by two for his acceptance of 

responsibility under U.S.S.G. § 3E1.1(a). The defendant's 

criminal history was determined to be in category III, based on 

five criminal history points. Two of these points were assigned 

because the offense was committed during a period of a previous 

criminal justice sentence, including parole, and the other three 

points resulted from the prior conviction itself. Thus, the five 

points were added as a direct result of the defendant's 

disclosure of his true identity. Absent this disclosure, the 

defendant would have had no criminal history points (criminal 

history category I), and the minimum sentence under the 

guidelines would have been 292 months instead of 360 months. 
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) (1988). According to the policy 

statement in U.S.S.G. § 5K2.0, circumstances that may warrant 

departure are generally of two kinds: factors the Commission did 

not adequately consider in formulating the guidelines and factors 

that were considered but resulted in an inadequate guideline 

level because of unusual circumstances substantially in excess of 

the ordinary. 

 A discretionary decision by the trial judge that a 

departure is not justified is not reviewable. See United States 

v. Gaskill, 991 F.2d 82, 84 (3d Cir. 1993); United States v. 

Higgins, 967 F.2d 841, 844 (3d Cir. 1992). But there is 

appellate jurisdiction where a court refuses to depart from the 

guidelines because it believes it lacks the authority to do so. 

Gaskill, 991 F.2d at 84; Higgins, 967 F.2d at 844. 

 In this case, the defendant maintains that except for 

his voluntary disclosure, his true identity would not have been 

ascertained. The probation officer who prepared the presentence 

investigation acknowledged he would not have discovered the 

defendant's true identity without the disclosure: "[A]s far as I 

knew he had no criminal history and I would not have looked any 

further from that point. . . . [I] would never have found out 

who he was." 

 The defendant contends that his voluntary admission to 

the probation officer of his true identity and his prior record 
are circumstances of a kind or to a degree not contemplated by 

the sentencing guidelines. He maintains that his sentence should 

be vacated and the matter remanded for resentencing because the 

district court erroneously believed it did not have authority to 

depart downward from the sentencing guideline range. 

 The government claims the sentencing court believed it 

possessed the authority under § 5K2.0 to depart if it found that 

circumstances warranted, but decided there was no basis for such 

a departure. Evidence of this belief, the government contends, 

is found in the court's order of May 3, 1994, stating in part, 

"it is hereby ORDERED that parties are notified that this Court 

is considering a reduction in the criminal history category -- 

from category III to category I -- under which Mr. Evans will be 

sentenced pursuant to § 5K2.0 due to the unique circumstances 

that surrounded Mr. Evans' presentence report interview." 

 It is true that a substantial portion of the sentencing 

hearing was devoted to a discussion of the possibility of 

downward departure because the defendant had volunteered 

information that resulted in an increase in his criminal history 

category. During this discussion the court stated: 

 But secondly . . . am I not entitled in 

measuring in some way the credit that's to be 

given for acceptance of responsibility or for 

something else, entitled to take into 

consideration that this man volunteered all 

this knowledge with these consequences, not 

that he had a right to withhold it, but that 

despite the consequences he volunteered it? 

And I just wonder whether that is a situation 

which is -- was contemplated by the drafters 

of the guidelines. 
But at the conclusion of the hearing the judge stated: 

 I hold that I do not have the power to apply 

a lesser guideline or to make a downward 

departure. I must say that I feel that . . . 

a 30-year sentence is more severe than I 

would impose were I free to find a lesser 

guideline or free to depart downward. But I 

hold that I do not have the power. 

 Although the government makes a plausible argument that 

the court determined there was no justification for a departure, 

the matter is sufficiently ambiguous ("I hold that I do not have 

the power . . . .") to require vacating the sentence and 

remanding if the defendant's actions could satisfy the 

requirements of U.S.S.G. § 5K2.0. Cf. United States v. Mummert, 

34 F.3d 201, 205 (3d Cir. 1994) (vacating sentence and remanding 

to district court because "the record does not make clear whether 

the district court's denial of departure was based on legal or 

discretionary grounds"). 

III. 

 U.S.S.G. § 5K2.0 quotes the language of 18 U.S.C. § 

3553(b), permitting the sentencing court to "impose a sentence 

outside the range established by the applicable guideline, if the 

court finds 'that there 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.'" 

 To determine whether a proposed departure satisfies § 

5K2.0, we must first consider whether the defendant's actions 
could constitute a "mitigating circumstance." If so, then we 

must decide whether such circumstance is "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." U.S.S.G. § 5K2.0 

(quoting 18 U.S.C. § 3553(b)). 

A. 

 Since the adoption of the sentencing guidelines, courts 

have been wrestling with just what constitutes a mitigating 

circumstance that justifies downward departure. In United States 

v. Lieberman, 971 F.2d 989, 998-99 (3d Cir. 1992), we permitted 

the district court to depart downward when a prosecutor's 

manipulation of an indictment foreclosed the grouping of two 

related offenses under the guidelines, thereby resulting in a 

higher sentence than usual. We allowed the departure because 

otherwise "it would raise the prosecutor to a position supreme 

over the district judge vis-a-vis sentencing by virtue of the 

uncontrolled charging discretion." Id. at 998. In United States 

v. Gaskill, 991 F.2d 82 (3d Cir. 1993), we allowed a downward 

departure because the defendant was the sole source of care for 

his mentally ill wife. In so holding, we noted that "departures 

are an important part of the sentencing process because they 

offer the opportunity to ameliorate, at least in some aspects, 

the rigidity of the Guidelines themselves." Id. at 86. Thus, as 

we noted in United States v. Bierley, 922 F.2d 1061, 1067 (3d 

Cir. 1990), "[i]f a case is atypical, or for some other reason 

falls outside the scope of cases considered by the Sentencing 
Commission, the Guidelines have fairly expansive language 

allowing for discretionary departure." 

 But in United States v. Newby, 11 F.3d 1143, 1148-49 

(3d Cir. 1993), cert. denied, 114 S.Ct. 1841 (1994), we held that 

prisoners' loss of good time credits as a disciplinary sanction 

for assaulting prison guards could not be considered a mitigating 

factor in their subsequent convictions and sentences for 

assaulting, impeding, and interfering with those same guards. We 

stated that "[t]he gravamen of a mitigating circumstance is that 

it somehow reduces the defendant's guilt or culpability. It is a 

circumstance that 'in fairness and mercy, may be considered as 

extenuating or reducing the degree of moral culpability.'" Id. at 

1148 (quoting Black's Law Dictionary 1002 (6th ed. 1990)). 

 The government here cites the Newby definition of 

"mitigating circumstance" and contends that the defendant's 

disclosure of his identity does not impact upon his "guilt or 

culpability" for the offense. But the government's reliance on 

Newby is misplaced. In United States v. Monaco, 23 F.3d 793 (3d 

Cir. 1994), the government offered a similar argument as to why 

the defendant's anguish at seeing his son convicted for aiding 

and abetting his crime could not be used as the basis for a 

downward departure. We rejected that contention, noting that 

"the Commission [did] not intend to limit the kinds of factors, 

whether or not mentioned elsewhere in the guidelines, that could 

constitute grounds for departure in an unusual case." Id. at 803 

(quoting U.S.S.G. Manual 6 (1993)). We noted in Monaco that the 

reasons for departure in Gaskill and Lieberman had nothing to do 
with the defendant's culpability. We held, therefore, that "to 

the extent that Newby's pronouncement on moral culpability can be 

read to implicitly overrule decisions such as Gaskill and 

Lieberman, the Newby language must be considered dictum. 

Accordingly, nothing in Newby prevents a downward departure in 

this case." Id. (citation and footnote omitted).2

 We find the Monaco reasoning applicable to this case.

 Furthermore, a less restrictive view of the district 

court's discretion to depart downward is bolstered by the 

Sentencing Commission's recent amendment to U.S.S.G. § 5K2.0. 

The amendment, which became effective on November 1, 1994, added 

the following language: 

 An offender characteristic or other 

circumstance that is not ordinarily relevant 

in determining whether a sentence should be 

outside the applicable guideline range may be 

relevant to this determination if such 

characteristic or circumstance is present to 

an unusual degree and distinguishes the case 

from the "heartland" cases covered by the 

guidelines in a way that is important to the 

statutory purposes of sentencing. 

U.S.S.G. § 5K2.0 (Policy Statement) 

 The Sentencing Commission said this amendment provided 

guidance "as to when an offender characteristic or other 

 

2. Monaco did not, however, disturb Newby's holding that the 

loss of good time credits did not merit downward departure. As 

we noted in Monaco, "we construe Newby as focusing primarily on 

the fact that because criminal sentences and disciplinary 

sanctions are designed to serve different purposes, a departure 

would defeat the goals of the criminal justice system by giving 

incarcerated defendants lesser sentences than they deserved." 23 

F.3d 793, 803 n.16 (3d Cir. 1994). 
circumstance (or combination of such characteristics or 

circumstances) that is not ordinarily relevant to a determination 

of whether a sentence should be outside the applicable guideline 

range may be relevant to this determination." Amendment 508, 

U.S.S.G. App. C. The amendment provides that a court may use a 

broad range of factors in departing from the guidelines, allowing 

characteristics or circumstances "not ordinarily relevant" to be 

considered if "important to the statutory purposes of 

sentencing." Therefore, we believe the defendant's disclosure of 

his true identity could constitute a "mitigating circumstance," 

within the meaning of § 5K2.0. 

B. 

 Although we have determined that defendant's conduct 

potentially could constitute a "mitigating circumstance," we 

still must examine whether such circumstance could be "of a kind, 

or to a degree, not adequately taken into consideration by the 

Sentencing Commission in formulating the guidelines." U.S.S.G. § 

5K2.0. The defendant contends that his disclosure of his true 

identity constitutes a basis for departure as acceptance of 

responsibility substantially in excess of the norm under § 5K2.0 

and our decision in United States v. Lieberman, 971 F.2d 989 (3d 

Cir. 1992). 

 In Lieberman, a bank vice president was accused by bank 

officials of embezzlement. Once accused, Lieberman immediately 

admitted his wrongdoing, resigned his position, explained to bank 

managers how they could detect such wrongdoing in the future, and 

agreed to make restitution for more than he thought he owed. Id.
at 991, 996. Lieberman received an initial two-level deduction 

for acceptance of responsibility under U.S.S.G. § 3E1.1(a),3 as 

did the defendant here. The district court then departed from 

the guidelines by granting Lieberman a one-level reduction based 

on his "unusual degree of acceptance of responsibility." Id. at 

992. 

 After a thorough review of the guidelines' treatment of 

"acceptance of responsibility" and the justifications for a 

downward departure, we stated in Lieberman that "[t]here is some 

indication from the Sentencing Commission that the scheme 

established by the Guidelines encompasses a departure for the 

degree of acceptance of responsibility." Id. at 995. We 

affirmed the district court on this ground, noting that "courts 

'have recognized that a defendant's ameliorative post-arrest 

conduct may justify a departure even though section 3E1.1 rewards 

acceptance of responsibility'" and "that a sentencing court may 

depart downward when the circumstances of a case demonstrate a 

degree of acceptance of responsibility that is substantially in 

excess of that ordinarily present." Id. at 996 (citations 

omitted). 

 The government claims, however, that defendant's 

conduct here does not even merit recognition as acceptance of 

responsibility and certainly not as acceptance "substantially in 

 

3. U.S.S.G. § 3E1.1(a) provides: "If the defendant clearly 

demonstrates acceptance of responsibility for his offense, 

decrease the offense level by 2 levels." The commentary then 

lists eight nonexclusive factors a court may consider in 

determining whether to apply § 3E1.1. 
excess of that ordinarily present," as required by Lieberman. 

Id. The government contends the defense position ignores the 

tenuous nature and limited scope of the defendant's acceptance of 

responsibility.4 In fact, the government maintains that the 

defendant's disclosure of his true name was nothing more than 

what was required of him and, had he failed to do so, he would 

have been subject to an enhancement for obstruction of justice 

pursuant to U.S.S.G. § 3C1.1. Compare United States v. Mohammed, 

27 F.3d 815, 822 (2d Cir.) ("An obstruction enhancement is 

warranted when a defendant provides false information [such as 

his name] to the Probation Department."), cert. denied, 115 S. 

Ct. 451 (1994), with United States v. Alpert, 28 F.3d 1104, 1107-

08 (11th Cir. 1994) (en banc) ("[A] district court applying the 

enhancement because a defendant gave a false name at arrest must 

explain how that conduct significantly hindered the prosecution 

or investigation of the offense.").5

 

4. It is true that soon after pleading guilty the defendant 

moved to withdraw his guilty plea. When that motion was denied, 

he then contested the extent of his involvement in the conspiracy 

and disputed the claim that he had held a position as a 

supervisor in the organization. By accepting the probation 

department's recommendation, however, the government contends the 

court necessarily found that the defendant had been responsible 

for the distribution of more than 500 kilograms of cocaine and 

had maintained a managerial role in the conspiracy. These are 

factors for the district court to consider in determining whether 

to exercise its discretion to depart downward. 

5. We note that an Application Note to U.S.S.G. § 3E1.1 states 

that "a defendant is not required to volunteer, or affirmatively 

admit, relevant conduct beyond the offense of conviction in order 

to obtain a reduction" under this section. 
 Although we do not condone the defendant's concealment 

of his true identity, we do not believe the district court is 

foreclosed from deciding that the defendant's later disclosure of 

his correct name might warrant downward departure. As we noted, 

the probation officer who prepared the presentence investigation 

admitted he would not have discovered the defendant's true 

identity without the disclosure. It would appear, therefore, 

that the defendant has made a colorable argument that his 

voluntary disclosure of identity might constitute a degree of 

acceptance of responsibility substantially in excess of the norm. 

The district court indicated at the sentencing hearing that the 

defendant's disclosure despite the consequences might present 

such a situation of extraordinary acceptance of responsibility 

not contemplated by the guidelines. We leave this determination 

to the discretion of the sentencing court. 

IV. 

 For the foregoing reasons, we will vacate the 

defendant's sentence and remand to the district court for 

resentencing.