UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

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No. 93-3220

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UNITED STATES OF AMERICA, Plaintiff-Appellee,



v.



xxxxxxx XAVIER xxxxxxx, Defendant-Appellant.



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APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

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REPLY BRIEF FOR APPELLANT

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SUMMARY OF ARGUMENT



In his opening brief, Mr. xxxxxxx argued that the district court erred in admitting at trial critical hearsay evidence against him consisting of the testimony of one police officer and a tape recording of the officer's radio communications establishing that he observed Mr. xxxxxxx in possession of a bag containing drugs. In making that argument, Mr. xxxxxxx established that the police officer's testimony clearly was hearsay because it was offered to prove the truth of the matters asserted, that is, that the officer observed Mr. xxxxxxx throwing down a bag of drugs, rather than for any proper purpose, such as present sense impression under FED. R. EVID. 803(1) or as an excited utterance under FED. R. EVID. 803(2). Mr. xxxxxxx also showed that the tape recording of the officer's radio communications should have been excluded from evidence under FED. R. EVID. 803(8)(B) as a record containing matters observed by a law enforcement officer when offered against the defendant in a criminal case. Finally, Mr. xxxxxxx demonstrated that the combined effect of the erroneous admission of the hearsay evidence and the prosecution's improper use of that evidence during closing argument prejudiced Mr. xxxxxxx's right to a fair trial. We rest on our opening brief in maintaining that the district court's plain error in admitting the devastating hearsay evidence against Mr. xxxxxxx requires that his conviction be reversed and a new trial granted.

Having said that, this reply brief focuses on the second point raised in Mr. xxxxxxx's opening brief -- that the district court failed to recognize its authority to depart downward based upon an aggregate of mitigating circumstances involving aberrant behavior, extraordinary family circumstances, steady employment history, and educational background. Contrary to the government's contentions, the district court's comments at sentencing implied that it believed that it lacked authority to grant a downward departure based upon any of the grounds articulated by Mr. xxxxxxx. At best, the court's remarks in response to Mr. xxxxxxx's sentencing departure arguments are ambiguous and necessitate a remand of the record so that the court can clarify its reasons for refusing to depart downward.

Alternatively, the prosecution argues in its brief that even if the district court's sentencing remarks are ambiguous, a remand is unnecessary because no downward departure was warranted under the circumstances in this case. This argument is also unpersuasive because the grounds raised by Mr. xxxxxxx have been recognized by several courts as proper bases for departures. Moreover, the mitigating circumstances in this case justify a sentence below the otherwise applicable guideline range. Therefore, this case should be remanded for resentencing.

ARGUMENT

I. THE COURT PLAINLY ERRED IN ADMITTING HEARSAY EVIDENCE CONSISTING OF TESTIMONY AND A TAPE RECORDED RADIO COMMUNICATION CONCERNING MATTERS OBSERVED BY THE POLICE WHICH FORMED THE BASIS OF MR. xxxxxxx'S ARREST AND IN PERMITTING THE PROSECUTOR TO USE THE INADMISSIBLE EVIDENCE IN CLOSING ARGUMENT TO BOLSTER THE TESTIMONY OF THE CHIEF GOVERNMENT WITNESS.

We stand on our opening brief. The district court's rulings regarding the admission and use of improper hearsay evidence denied Mr. xxxxxxx a fair trial.

II. THE COURT ERRED IN RULING THAT IT LACKED AUTHORITY TO GRANT A DOWNWARD DEPARTURE BASED UPON MR. xxxxxxx'S ABERRANT BEHAVIOR, EXTRAORDINARY FAMILY CIRCUMSTANCES, EMPLOYMENT HISTORY, AND EDUCATIONAL BACKGROUND.

A. Because the District Court Misunderstood the Scope of Its Sentencing Authority Under the Guidelines, Its Decision Not to Depart is Reviewable on Appeal.



Although it concedes that "several of the district court's [sentencing] comments can be read in isolation to suggest that the court did not believe that it had any discretion [to depart downward]," the government argues that, placed in their proper context, the remarks made by the district court at the two sentencing proceedings held in this case reflect the court's recognition that the departure grounds presented by Mr. xxxxxxx did not justify the exercise of its discretion to grant a downward departure from the otherwise applicable guideline range. Gov. Br. 29-33. (1) However, the record does not support the prosecution's contentions. At each of the sentencing proceedings, the district court remarked that its sentencing discretion under the guidelines was extremely limited. [A. 76-77, 87] (2) The government's assertion that these comments merely reflect the "familiar refrain" of sentencing judges that the guidelines significantly limit their discretion, Gov. Br. 30, fails to recognize that the district court's comments in the instant case were not general musings about the impact of the guidelines but, instead, were direct responses to defense counsel's departure arguments. See Def. Br. 32-33. (3)

At the final sentencing proceeding held on November 22, 1993, the district court rejected Mr. xxxxxxx's departure arguments and stated:

The court rejects the novelty or the background arguments of this defendant as a basis for departure and as not within the contemplation or consideration of the Sentencing Commission in enacting the guidelines. All of the factors mentioned by [defense counsel] are appropriate and proper, but not something that the court can use to override the commands of the Sentencing Commission guidelines.



[A. 86-87] The government points to this remark as an indication that the district court "clearly exercised its discretion in sentencing the appellant by finding an insufficient factual basis for departure." Gov. Br. 32. However, contrary to the prosecution's assertion, the court's comment is anything but clear. Rather than basing its denial of a departure on insufficient facts, the court appears to be saying that because Mr. xxxxxxx's departure grounds were within the contemplation of the Sentencing Commission, they could not constitute the basis for a downward departure. Thus, the district court apparently failed to recognize that the Sentencing Commission treats aberrant behavior, one of Mr. xxxxxxx's grounds for departure, as something it has not considered, see U.S.S.G. Ch. 1, Pt. A Intro. (4)(d), and that the court also had the discretion to depart based upon extraordinary family ties, employment history, and educational background. The quoted remark shows that the district court failed to make the crucial distinction between ordinary circumstances that do not warrant departure because they are within the contemplation of the Sentencing Commission and extraordinary circumstances which by their nature are not capable of adequate consideration by the Commission. See Def. Br. 33-34.

The government's citations as supporting authority are dubious. See Gov. Br. 32-33. In United States v. Hazel, 928 F.2d 420, 424-25 (D.C. Cir. 1991), the sentencing judge's comments in denying the downward departure clearly indicated that he understood the scope of his authority (the sentence imposed "reflects the seriousness of the actions engaged in in this case," and "will assure the purposes for which we are sentencing you to deterrence and rehabilitation, as well as removing you from the streets for an extremely long period of time.") Similarly, in United States v. Cacho, 951 F.2d 308, 310 (11th Cir. 1992), in denying a downward departure, the district court made a specific finding that the statutory provision authorizing departures from the guidelines, 18 U.S.C. 3553(b), did not warrant a departure under the facts and circumstances of that case. Notwithstanding the relative clarity of the district court's comment in that case, the court of appeals remarked that the sentencing court's "statement could have been clearer . . .." Id. at 310. Finally, the sentencing court in United States v. Lopez, 938 F.2d 1293, 1295 (D.C. Cir. 1991), clearly recognized that it had the authority to depart on the basis of the defendant's age only in an extraordinary case ("the court feels that [the defendant's age] is not such an unusual case . . . that would permit the Court to depart").

The instant case is closer to United States v. Beckham, 968 F.2d 47, 53 (D.C. Cir. 1992), than to either Hazel, Cacho, or Lopez. In Beckham, the district court rejected several possible departure grounds, stating, "'I do not see that I have any discretion in the matter. Congress and the Sentencing Commission have taken that away from me.'" Id. at 53. Construing the district court's comment as an indication of its misunderstanding of its authority to depart, this Court remanded the case for resentencing. Id. at 53, 55. As in Beckham, the district court in this case "indicate[d] erroneously that "'his discretion was constrained in a way that it actually was not.'" Id. at 53 (quoting United States v. Hazel, 928 F.2d at 425).

Contrary to the government's arguments, the most reasonable interpretation of the district court's sentencing remarks in this case is that it did not recognize its authority to depart downward by finding that the mitigating circumstances presented by Mr. xxxxxxx were extraordinary. Therefore, this case should be remanded for resentencing so that the district court can determine whether Mr. xxxxxxx's aberrational conduct, extraordinary family circumstances, steady employment history, and educational record warrant a downward departure. Alternatively, if this Court concludes that the record is ambiguous on this point, the record should be remanded so that the district court can clarify its reasons for refusing to depart downward.

B. The District Court Had Authority to Depart Downward on the Basis of a Combination of Mitigating Factors.

Alternatively, the government argues that even if the district court erred in failing to recognize its authority to grant a downward departure in this case, any sentencing error was harmless because the record does not justify a departure upon the grounds raised by Mr. xxxxxxx. Gov. Br. 33-40. Specifically, the prosecution contends that Mr. xxxxxxx's conduct in this case was not aberrational and that his family circumstances, employment history, and educational background, while perhaps mitigating, are not sufficiently extraordinary to fall outside the "heartland" of cases considered by the Sentencing Commission in promulgating the Sentencing Guidelines. Gov. Br. 34-37 (discussing aberrant behavior), 37-40 (discussing family circumstances), 40 (discussing combination of factors). We discuss each of these factors separately.

Although this Court has not decided the question of what constitutes aberrant behavior under the Guidelines, there is a split in the circuits on this issue. While the majority of the courts of appeals have decided that aberrant behavior is a single, spontaneous, unplanned act, see, e.g., United States v. Marcello, 13 F.3d 752, 761 (3d Cir. 1994); United States v. Williams, 974 F.2d 25, 26 (5th Cir. 1992), cert. denied, 113 S. Ct. 1320 (1993); United States v. Carey, 895 F.2d 318, 324 (7th Cir. 1990), the Ninth Circuit looks to lack of prior convictions in determining whether a departure for aberrant behavior is justified. See United States v. Fairless, 975 F.2d 664, 668 (9th Cir. 1992); United States v. Takai, 941 F.2d 738, 743 (9th Cir. 1991). Mr. xxxxxxx respectfully urges this Court to adopt the Ninth Circuit's view of aberrant behavior.

Moreover, contrary to the government's intentions, Mr. xxxxxxx did not seek a downward departure based upon his lack of prior convictions alone but, instead, in conjunction with his strong family ties and steady employment history. See United States v. Tsosie, 14 F.3d 1438, 1440-42 (10th Cir. 1994) (downward departure based upon steady employment history, economic support of family, and aberrational conduct exemplified by lack of prior criminal history); Def. Br. 34.

The government argues that Mr. xxxxxxx's claim on appeal that the district court erred in failing to grant a downward departure on the basis of extraordinary family circumstances must fail because the district court considered and rejected this argument at sentencing and because there was nothing extraordinary about Mr. xxxxxxx's family responsibilities. Gov. Br. 38-40. In support of its argument that the district court declined to depart downward based upon this ground, the government cites to the district court's remark at sentencing that it had considered the letters submitted by Mr. xxxxxxx's family but that "there's very little, if any, discretion that any judge has . . .." Gov. Br. 38 n. 26 (citing Appendix for Appellant at 76-77). However, rather than supporting the government's argument, the district court's comment demonstrates that it did not recognize that it had the discretionary authority to depart on the basis of extraordinary family circumstances.

Moreover, although Mr. xxxxxxx's family responsibilities differ from those involved in the cases cited by the government, because he had the responsibility of financially supporting (albeit not fully) not only his mother and twin daughters, but also his three younger sisters and a nephew, it would have been within the district court's discretion to consider extraordinary those particular family circumstances. Because family circumstances by their nature are diverse, courts which have upheld departures on this ground have focused on the destructive impact on dependents of the defendant's incarceration. See United States v. Johnson, 964 F.2d 124, 128-29 (2d Cir. 1992) (departure upheld where defendant's incarceration would "wreak extraordinary destruction on dependents"); United States v. Alba, 933 F.2d 1117, 1122-24 (2d Cir. 1991) (departure upheld where sentencing court found that "incarceration in accordance with the Guidelines might well result in the destruction of an otherwise strong family unit").

The district court in the instant case apparently failed to consider the impact of Mr. xxxxxxx's incarceration on his dependents. Significantly, Mr. xxxxxxx sought a downward departure based upon extraordinary family circumstances, as viewed in conjunction with his lack of prior convictions, steady employment history, and strong educational background. See United States v. Ingram, 816 F. Supp. 26, 36 (D.C.C. 1993) (extraordinary family circumstances, stable employment, negligible criminal history, and relatively minor role in offense warranted downward departure); Def. Br. 34-35.

Finally, the government contends that because, in its view, none of Mr. xxxxxxx's individual mitigating factors justifies a downward departure, the aggregate of those factors "does not change the determination that a downward departure was not warranted in appellant's case." Gov. Br. 40. However, the prosecution concedes that some courts have recognized that even if a particular factor is insufficient to warrant a downward departure, the aggregate of mitigating circumstances, when taken together, can justify a different result. Gov. Br. 40.

In the instant case, the combination of Mr. xxxxxxx's lack of prior convictions, extraordinary family circumstances, consistent employment history, and educational background provided the district court with the authority to grant a downward departure. See Def. Br. 35-36. Because the sentencing court failed to recognize that it had the authority to depart on the basis of the combination of these mitigating considerations, this case should be remanded for resentencing so that the lower court can determine whether Mr. xxxxxxx's mitigating circumstances, when considered alone or in aggregate, warrant a downward departure. Alternatively, if this Court concludes that it is unclear whether the district court recognized its legal authority to depart based upon the grounds raised by Mr. xxxxxxx, the record should be remanded for the district court to clarify its reasons for refusing a downward departure on these grounds.

CONCLUSION

For the foregoing reasons and those stated in our opening brief, Mr. xxxxxxx's conviction should be reversed and his case remanded for a new trial. Failing that, Mr. xxxxxxx's sentence should be set aside and his case remanded for resentencing or, alternatively, the record should be remanded for the district court to clarify its reasons for denying a departure.

Respectfully submitted,

A.J. KRAMER

FEDERAL PUBLIC DEFENDER





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NEIL H. JAFFEE

Assistant Federal Public Defender

On Behalf of Appellant xxxxxxx X. xxxxxxx

625 Indiana Avenue, N.W., Suite 550

Washington, D.C. 20004

(202) 208-7500









CERTIFICATE OF LENGTH



I HEREBY CERTIFY that the foregoing brief for appellant, xxxxxxx X. xxxxxxx, does not exceed the number of words permitted by D. C. Circuit Rule 28(d)(1).



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NEIL H. JAFFEE

Assistant Federal Public Defender







CERTIFICATE OF SERVICE



I HEREBY CERTIFY that on September 15, 1994, I have served by hand two copies of the foregoing Reply Brief for Appellant on Margaret M. Lawton, Assistant United States Attorney, United States Attorney for the District of Columbia, 555 4th Street, N.W., Room 10-435, Washington, D.C. 20001.



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NEIL H. JAFFEE

Assistant Federal Public Defender

1. References to the Brief for the United States have been abbreviated "Gov. Br." followed by the page number being cited.

2. References to the Appendix filed with our opening Brief of Appellant have been abbreviated "A." followed by the page number being cited.

3. References to the opening Brief for Appellant have been abbreviated "Def. Br." followed by the page number being cited.