Appeal from the United States District Court for the Northern District of Indiana, South Bend Division.
No. 94 CR 14--Robert L. Miller, Jr., Judge.
Before EASTERBROOK, KANNE, and ROVNER, Circuit Judges.
The defendant was sentenced to forty-six months incarceration for intentionally conspiring to distribute more than one hundred kilograms of marijuana, and he appeals his sentence. The issue is whether a district court may depart downward from the sentence range prescribed by the United States Sentencing Guidelines if there are perceived disparities among coconspirators' sentences. We reconfirm our agreement with the other circuits that a district court has no such authority and affirm the sentence imposed.
A grand jury sitting in South Bend, Indiana, returned an indictment on March 3, 1994, charging Antonio Meza with fifteen counts of unlawful conduct stemming from his involvement in a marijuana trafficking conspiracy. Several of his coconspirators had already been arrested on January 12, 1993, and had chosen to cooperate with the government. Meza entered into an agreement with the government on January 10, 1995, in which he admitted to Count One of the indictment: intentionally conspiring to possess with intent to distribute more than one hundred kilograms of marijuana, a Schedule I controlled substance under 21 U.S.C. sec. 812, in violation of 21 U.S.C. secs. 841, 846. In return for this guilty plea, the government promised: (1) to move to dismiss Counts Two through Fifteen of the indictment; (2) not to prosecute Meza for other narcotic distribution activities of which it was then aware; (3) to offer two non-binding recommendations to the district court pertaining to the calculation of Meza's offense level under the United States Sentencing Guidelines; and (4) to offer two binding recommendations to the district court concerning the length of any incarceration. *fn1
The district court held a sentencing hearing on May 5, 1995. It calculated that Meza's offense carried a base level of twenty-six guideline points but that his acceptance of responsibility and timely guilty plea mandated a three-point reduction according to U.S.S.G. secs. 2D1.1(c)(7), 3E1.1. Meza had no criminal history points, so his twenty-three-point total required a sentence range of forty-six to fifty-seven months pursuant to U.S.S.G. sec. 5A. This guideline range conflicted with the mandatory minimum sentence of sixty months prescribed by 21 U.S.C. sec. 841, but the district court found that Meza qualified for the guideline sentence range pursuant to 18 U.S.C. sec. 3553(f), which provides that the guidelines shall control in such conflicts if the defendant meets five qualifications. *fn2
Meza's counsel then made an oral motion that the district court depart downward to "equalize or regularize" Meza's sentence in light of those received by his coconspirators. The district court denied the motion, stating that it had no authority to depart under the guidelines and the law of this circuit, and sentenced Meza to a forty-six month term of imprisonment. Meza filed a timely notice of appeal, and he argues that the district court was wrong in determining that it lacked authority to depart downward. We have jurisdiction to review the district court's judgment under 28 U.S.C. sec. 1291. In addition to meeting the finality requirement of sec. 1291, the judgment must qualify under 18 U.S.C. sec. 3742, which authorizes appeals from sentencing decisions. See United States v. Franz, 886 F.2d 973, 981 n.8 (7th Cir. 1989).
A district court may depart from the guideline sentence range based upon factors not adequately considered by the Sentencing Commission in formulating the guidelines. 18 U.S.C. sec. 3553(b); Williams v. United States, 503 U.S. 193, 198, 112 S. Ct. 1112, 1118 (1992). Certain factors relevant to departure are described in U.S.S.G. sec. 5K: sec. 5K1 addresses departure for cooperation with law enforcement authorities, and sec. 5K2 lists "some of the factors that the Commission has not been able to take into account fully in formulating the guidelines." U.S.S.G. sec. 5K2.0. The factors identified in sec. 5K2 are not, however, the exclusive grounds for departure.
Circumstances that may warrant departure from the guidelines pursuant to this provision cannot, by their very nature, be comprehensively listed and analyzed in advance. The controlling decision as to whether and what extent departure is warranted can only be made by the courts. Any case may involve factors in addition to those identified that have not been given adequate consideration by the Commission. Presence of any such factor may warrant departure from the guidelines, under some circumstances, in the discretion of the sentencing court. U.S.S.G. sec. 5K2.0 (emphasis added).
This language suggests that departure decisions may originate solely within the discretion of the district court. United States v. Gaines, 7 F.3d 101, 105 (7th Cir. 1993). But that discretion is confined by law. The district court must ascertain whether the guidelines adequately account for whatever mitigating factors exist and whether these factors remove the case from the "heartland" of cases covered by the guidelines. The district court's ability to exercise its discretion concerning departures thus hinges upon its finding that the guidelines allow for departure as a matter of law. If a departure is allowed by the guidelines, then the decision whether to depart may be wholly discretionary. The text of 18 U.S.C. sec. 3742(a) requires that we determine at which stage in this process the district court reached the decision that is the focus of this appeal.
18 U.S.C. sec. 3742(a) iterates four categories of authorized appeals by defendants and is akin to a standing requirement. Defendants may appeal sentences imposed "in violation of the law" under 18 U.S.C. sec. 3742(a)(1), and this subsection allows appellate review of a district court's legal interpretations of the guidelines. United States v. Poff, 926 F.2d 588, 591 (7th Cir.) (en banc), cert. denied, 502 U.S. 827 (1991). The negative implication of the Poff holding is that sentencing decisions that do not reflect a legal ...