Appeal from the United States District Court for the Eastern District of Wisconsin.
No. 94 CR 113 -- Rudolph T. Randa, Judge.
Before POSNER, Chief Judge, and MANION and DIANE P. WOOD, Circuit Judges.
DECIDED DECEMBER 27, 1995
The defendant pleaded guilty to conspiracy to possess cocaine with intent to sell it. He appeals the sentence, raising two issues that warrant discussion (the third, that he should not have received a punishment bonus for obstruction of justice, is plainly without merit). Both issues relate to a provision of the sentencing guidelines, which is not the less authoritative for being labeled "policy statement," Williams v. United States, 503 U.S. 193, 200-01 (1992); see also Stinson v. United States, 113 S. Ct. 1913, 1917 (1993); United States v. Hill, 48 F.3d 228, 231 (7th Cir. 1995), that authorizes the judge to increase the defendant's criminal history score if the record of the defendant's convictions does not accurately reflect his past criminal activity. U.S.S.G. sec. 4A1.3. The judge found that defendant Anderson had committed two rapes and a false imprisonment that had not resulted in convictions but that in the judge's view justified an increase in Anderson's criminal history score. The increase raised Anderson's maximum sentence from 87 months to 137 months and the obstruction of justice raised it to 162 months, which was the sentence the judge gave him.
Section 4A1.3(e) provides that "if reliable information indicates that the criminal history category does not adequately reflect the seriousness of the defendant's past criminal conduct or the likelihood that the defendant will commit other crimes, the court may consider imposing a sentence departing from the otherwise applicable guideline range. Such information may include, but is not limited to, information concerning . . . prior similar adult criminal conduct not resulting in a criminal conviction." We have italicized the word on which the first issue pivots. For while the guideline is explicit that information justifying an adjustment in the criminal history category is not limited to conduct that falls within one or more of the specific categories in the guideline, such as prior similar adult criminal conduct not resulting in a criminal conviction, the judge based the adjustment in Anderson's criminal history solely on the similarity, as the judge saw it, of the rapes and false imprisonment to the offense of conviction, the drug offense. The text of the guideline and our interpretation of that text make clear that the judge could have based his upward departure on prior dissimilar criminal conduct of Anderson, United States v. Schweihs, 971 F.2d 1302, 1319 (7th Cir. 1992), but that would be a discretionary judgment on his part and we cannot exercise the discretion that the guidelines lodge in him. We note that the government does not argue that the sentence should be upheld on an alternative basis.
The record reveals no similarity between Anderson's prior crimes of rape and false imprisonment and the offense of conviction as a lay person would use the term "similar," except, of course, that all are crimes. The drug offense, the offense of conviction, was simple dealing, with no hint of violence; it was the conduct of a business activity that happens to be illegal. The rapes were -- rapes. They had nothing to do with Anderson's drug dealing. Neither rape resulted in a prosecution, though the evidence presented at the sentencing hearing that Anderson had indeed committed them was adequate. The false imprisonment did result in a prosecution, and indeed a conviction, but for a different crime. Anderson abducted two men who, he thought, knew the whereabouts of another person. He drove them around in his car for several hours, beat them, and fired a bullet that grazed the side of one of them. Anderson pleaded guilty to a misdemeanor battery of one of the men, when the two victims declined to press charges. The evidence presented at the sentencing hearing that his crime was indeed false imprisonment rather than mere battery was, again, adequate. The abduction had nothing to do with Anderson's drug dealings, however; it was his response to threats of retaliation that had been made against him because of a previous rape that he had committed.
The government argues that all violent crimes are similar to one another. Even if this is right, as we doubt, its application to this case is unclear. Not all drug offenses are violent; Anderson's was not. But, ripostes the government, they are treated like violent offenses even when they are nonviolent; and the government cites statutory and guidelines provisions in which the same treatment is meted out to a defendant convicted or accused of a violent crime or a felony drug offense. E.g., 18 U.S.C. secs. 924(e), 3142(f)(1); U.S.S.G. sec. 4B1.1. These and other laws group felony drug offenses with violent crimes for a number of purposes, not only sentencing but also pretrial detention and even deportability. They undoubtedly reflect a legislative determination that felony drug offenses are as serious in some broad sense as crimes of violence, though the most serious crimes of violence, such as murder, are punished more heavily than the least serious felony drug offenses. But not all serious crimes are similar to each other. There is no trick in finding "paper" offenses, as the government calls them, that are punished as severely as crimes of violence. An example is counterfeiting, the maximum penalty for which -- 20 years in prison --exceeds that for many felony drug offenses. Compare 18 U.S.C. sec. 470 with 21 U.S.C. sec. 841(b)(1)(D). Yet the government does not consider counterfeiting similar to a felony drug offense.
The government's position implies, paradoxically, that if a minor drug dealer commits a rape for which he is not convicted, the rape, being "similar" conduct, can be used under section 4A1.3(e) to increase his criminal history score and hence his punishment, while if a counterfeiter, though a more serious criminal in the eyes of Congress, commits a rape, his rape cannot be so used. The government's only suggestion as to how this pattern might be thought rational is that drug offenses are on the whole more serious than "paper" offenses even though some of the latter are more serious than some of the former. Maybe so, but we do not see what this has to do with similarity.
We asked the government's lawyer at argument what penological purpose lies behind the limitation of section 4A1.3(e) to similar crimes, and we got no answer. It is difficult to apply a statute or rule without a clue to its purpose or function, and one hesitates to do so blindly when the consequence is to add years to a person's prison sentence. The guidelines do not furnish a clue to the purpose of "similar." In the absence of guidance there is little alternative to taking the word in its ordinary-language sense, and then the government loses.
Here is a stab at the purpose or function of the provision. It is a provision, remember, for adjusting a defendant's criminal history score when his record of actual convictions understates his criminal history. The focus will therefore be on crimes that the defendant committed but was not convicted of or with respect to which he was allowed to plead to a lesser offense, as in the case of the false imprisonment. If these prior crimes are similar to the offense of conviction, the inference arises that the defendant through aptitude or experience has become skilled in the commission of a particular type or class of crimes and as a result is able to get away with most of them. This would be a clear ground for a heavier sentence. It was a factor present (though not emphasized) in United States v. Dzielinski, 914 F.2d 98, 101 (7th Cir. 1990), where we upheld (though citing subsection (a) rather than (c) of section 4A1.3 because the defendant had been convicted of the previous crimes) a finding that the defendant's earlier crimes of fraud and forgery were similar to the offenses of conviction, which were bank robberies. The defendant acknowledged having robbed the banks in order to pay off the victim of one of his frauds.
If we are right about the purpose of the guideline -- and we derive some support for our speculation from United States v. Schmude, 901 F.2d 555, 559 (7th Cir. 1990), and United States v. Molina, 952 F.2d 514, 519 (D.C. Cir. 1992) -- it suggests that offenses as unlike each other in motive and method as drug dealing and rape are not similar within the meaning of the provision. The false imprisonment presents a more difficult question. There is a hint in the record that the reason the victims of the abduction did not press charges is that they were intimidated by the sight of Anderson and his associates at the police station. If the associates were Anderson's partners in the drug business, this may be a case where the existence of a criminal gang formed for one purpose facilitates the members' commission of their "personal" crimes, as in United States v. Masters, 924 F.2d 1362, 1366-67 (7th Cir. 1991). Dissimilar past crimes might be thought similar to the offense of conviction if facilitated by the activities giving rise to that offense, or, as in Masters, if the dissimilar past crimes facilitated the offense of conviction.
We do not wish to speak dogmatically on this difficult question -- plainly one that the Sentencing Commission ought to address. The district court's analysis was inadequate and the case ...