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United States Court of Appeals,Tenth Circuit.

UNITED STATES of America, Plaintiff-Appellant, v. Ray GARZA, Defendant-Appellee.

No. 94-6153.

Decided: June 13, 1995

Before BRORBY and EBEL, Circuit Judges, and BRATTON,* District Judge. Vickie Zemp Behenna, Asst. U.S. Atty., Oklahoma City, OK (Rozia M. McKinney-Foster, U.S. Atty., and Leslie M. Maye, Asst. U.S. Atty., with her on the briefs), for plaintiff-appellant. William P. Earley, Asst. Federal Public Defender, Oklahoma City, OK, for defendant-appellee.

This case is before us for the second time to review the sentence imposed on Defendant-Appellee Ray Garza (“Garza”).   Garza pled guilty to one count of travel in interstate commerce to facilitate unlawful activity.  18 U.S.C. § 1952(a)(3).   At Garza's first sentencing, the district court departed below the applicable sentencing range of the United States Sentencing Guidelines (“U.S.S.G.” or “Guidelines”) to lessen the disparity between Garza's sentence and that of a codefendant.   The government appealed the departure and this court reversed in United States v. Garza, 1 F.3d 1098 (10th Cir.) (“Garza I ”), cert. denied, 510 U.S. 1018, 114 S.Ct. 617, 126 L.Ed.2d 581 (1993).   On remand, the district court again departed below the applicable Guideline range, this time based on Garza's “super acceptance of responsibility.”   The government appealed the departure for a second time.   We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and, once again, we reverse and remand for resentencing within the applicable Guideline range.


The factual underpinnings of Garza's offense are set forth fully in our opinion in Garza I, 1 F.3d at 1098-99, and are not at issue on this appeal.   Based on Garza's participation in the drug enterprise described therein, Garza pled guilty to one count of travel in interstate commerce to facilitate unlawful activity.  18 U.S.C. § 1952(a)(3).

At the first sentencing hearing on November 10th, 1992, the court correctly applied the November 1, 1992 version of the Guidelines to calculate a base offense level of 28.   See U.S.S.G. § 2D1.1(c)(8).   The court then decreased the base offense by the maximum three levels permitted under U.S.S.G. § 3E1.1(b)(1) for Garza's timely acceptance of responsibility.   The resulting base offense level of 25, with Garza's criminal history category of I, resulted in a sentencing range of 57 to 71 months.   Because the offense of conviction carries a statutory maximum sentence of five years, see 18 U.S.C. § 1952(a), this range was capped at 60 months.

Over the government's objection, the district court then departed downward from this range to impose a sentence of 41 months in prison.   The district court justified departure as an effort to reduce the disparity between Garza's sentence and that of a codefendant, reasoning that the equalization of sentences in companion cases was not a factor adequately taken into account by the Guidelines.   See Garza I, 1 F.3d at 1100.   The government appealed this first downward departure in Garza I.   This court determined that the disparity in sentences was clearly explicable by factual differences between the defendants' conduct and therefore, because “the only disparities which are to be avoided are unwarranted disparities,” was an inappropriate ground for departure.   Id. at 1101 (emphasis in original).   Accordingly, we remanded for resentencing within the applicable Guideline range.   Id.

On remand, the district court held a resentencing hearing on April 11, 1994.   Without objection, the district court again began by calculating a base offense level of 28 with a criminal history category of I.   The court reduced Garza's base offense by the maximum three levels permitted by U.S.S.G. § 3E1.1(b)(1) for acceptance of responsibility, arriving at a base offense level of 25.   Thus, the court correctly arrived at a sentencing range of 57 to 71 months, capped at 60 months by the governing statutory maximum.

Again, however, the district court departed downward from this range over the government's objection.   The court reasoned that Garza had demonstrated “super acceptance of responsibility” beyond that contemplated by U.S.S.G. § 3E1.1.   See R.O.A. Vol. I, Findings of April 15, 1994, at 3 (hereinafter “Findings”).   Concluding that the maximum three-level offense reduction authorized in § 3E1.1 was “inadequate” to account for Garza's degree of acceptance of responsibility, the district court departed from the Guidelines by doubling the reduction permitted under § 3E1.1 and reducing Garza's base offense by an additional three levels.   Id.  Arriving at a base offense level of 22, which carries a sentencing range of 41 to 51 months, the court again imposed a 41-month term of imprisonment.   Id. at 3-4.

The court listed four facts to support its finding of “super acceptance of responsibility.”   First, Garza had demonstrated a “willingness to cooperate in the prosecution of others” by assisting in the conviction of his codefendants and agreeing to testify against a defendant in an unrelated prosecution.   Id. at 2-3.   Second, as a result of this cooperation, Garza had been placed in solitary confinement for three months in less favorable conditions than the general prison population in order to protect him from other inmates while he was assisting the government.   Id. at 2;  Sentencing Memorandum, R.O.A. Vol. II, at 4.   Third, Garza had demonstrated an unusual degree of post-offense rehabilitative efforts while in prison, including tutoring other inmates in English and otherwise “attempting to make the best of his situation.”   Findings, at 3.   And fourth, Garza had used money from his prison income to support his daughter.   Id.

The government brought this appeal to challenge the district court's second downward departure from the Guideline range.   The government does not object to the district court's initial calculation of a 57 to 60 month sentencing range.   The government challenges only the court's additional three-level downward departure and the resulting 41-month sentence.   While raising no objections to the four factual findings listed above, the government argues that these facts do not, either independently or in combination, justify a downward departure for “super acceptance of responsibility” because the Sentencing Commission has already adequately taken these factors into account in the Guidelines.


A sentencing court may depart downward from the applicable guideline range if the court finds a “ ‘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.’ ”  U.S.S.G. § 5K2.0, p.s. (1992) (quoting 18 U.S.C. § 3553(b)).   In reviewing a downward departure, this court applies a three-step analysis:

First, we determine de novo whether the circumstances cited by the district court admit of a factor not adequately taken into account by the Sentencing Commission which would justify departure.   Second, we review the district court's factual findings supporting departure and determine whether they were clearly erroneous.   Third, if the departure was justified, we review the degree of departure to determine whether it was reasonable.

United States v. Ziegler, 39 F.3d 1058, 1061 (10th Cir.1994) ( “Ziegler II ”).   Because we conclude that the facts cited by the district court at resentencing fail to “admit of a factor not adequately taken into account by the Sentencing Commission which would justify departure,” our inquiry proceeds no further than step one.

As a preliminary matter, we note that when the district court resentenced Garza on April 11, 1994, the court should not have considered any events that arose after its first sentencing hearing of November 10, 1992.   See United States v. Warner, 43 F.3d 1335, 1340 (10th Cir.1994) (“While ․ resentencing is to be conducted as a fresh procedure, the latitude permitted is circumscribed by those factors the court could have considered ‘at the first sentencing hearing.’   Thus, events arising after that time are not within resentencing reach.”).   Consequently, to the extent that Garza's cooperation with the government, time spent in solitary confinement, rehabilitation efforts, and continued child support occurred after November 10, 1992 (the date of his initial sentencing), the district court's reliance on these facts to support departure on resentencing was in error.

However, it is unclear what, if any, portion of this conduct occurred while Garza was in prison before his initial sentencing hearing and was thus appropriate to consider at resentencing.   Because we hold that these factors, even when considered in their entirety, do not justify downward departure under the Guidelines, it is unnecessary for purposes of this appeal to disentangle what portion of these events the court should have disregarded altogether.   While we have left open the possibility that a defendant's acceptance of responsibility may be a basis for departure if it is so exceptional as to constitute a degree not considered by U.S.S.G. § 3E1.1, see United States v. Gaither, 1 F.3d 1040, 1043 (10th Cir.1993), all the factors relied on by the district court to arrive at such a conclusion have already been adequately accounted for by the Guidelines.

The first fact that the district court used to support its finding of “super acceptance of responsibility” was that Garza had assisted the government in the prosecution of his codefendants and had agreed to testify against another defendant in an unrelated prosecution.   However, this type of assistance to authorities is specifically accounted for elsewhere in the Guidelines.   Policy statement § 5K1.1 states that, “[u]pon motion of the government stating that the defendant has provided substantial assistance in the investigation or prosecution of another person who has committed an offense, the court may depart from the guidelines.”   Because the government did not make a § 5K1.1 motion in this case, however, the district court lacked authority for downward departure under that provision.   See United States v. Lee, 989 F.2d 377, 379 (10th Cir.1993);  United States v. Kuntz, 908 F.2d 655, 657 (10th Cir.1990).

Instead, the district court used Garza's assistance to the government as a factor demonstrating Garza's acceptance of responsibility.  “The Court does not regard guidelines §§ 5K1.1 and 3E1.1 as being mutually exclusive,” the district court reasoned.   Findings, at 3.  “Conduct that might lead to a prosecution motion under § 5K1.1 is relevant in this case to § 3E1.1, along with all other § 3E1.1 factors.”   Id.

This reasoning is at odds with the Commission's application note to § 5K1.1, which clarifies that

[t]he sentencing reduction for assistance to authorities shall be considered independently of any reduction for acceptance of responsibility.   Substantial assistance is directed to the investigation and prosecution of criminal activities by persons other than the defendant, while acceptance of responsibility is directed to the defendant's affirmative recognition of responsibility for his own conduct.

U.S.S.G. § 5K1.1, application note 2.   Relying on Garza's assistance to the government as grounds for departure under § 3E1.1 was therefore improper, because the Commission has adequately taken into account a defendant's substantial assistance to the government in § 5K1.1.   Because Garza's assistance to the government fits squarely within the boundaries contemplated by § 5K1.1, that conduct does not “admit of a factor not adequately taken into account by the Sentencing Commission,” and therefore cannot support the court's departure under its § 3E1.1 analysis.1  See Ziegler II, 39 F.3d at 1061.

The second fact that the court used to support its finding of “super acceptance of responsibility” was that Garza had been placed in solitary confinement for three months to protect him from other inmates who might retaliate against him for his ongoing cooperation with the government.   The court felt that this fact demonstrated exceptional acceptance of responsibility because, by cooperating with the government, Garza had voluntarily subjected himself to harsher prison conditions than he otherwise would have endured.

To the extent that the court's reference to Garza's time in solitary confinement was intended as further evidence of Garza's cooperation with the government, our analysis regarding the adequacy of U.S.S.G. § 5K1.1 to account for cooperation applies to this fact as well.   To the extent that the court inferred acceptance of responsibility based on the quality of the confinement itself, that inference is undercut by this court's suggestion that conditions of confinement are not relevant to sentencing departure.   See, e.g., United States v. Rivas, 922 F.2d 1501, 1505-06 (10th Cir.1991) (affirming district court's refusal to consider fact that defendant had been beaten by prison guards as a mitigating factor at sentencing because it was “not a circumstance that lessens the severity of his crime nor does it affect the determination of a proper sentence for his offense”);  see also Ziegler II, 39 F.3d at 1063 (holding that it is improper to consider prison capacity as grounds for sentencing departure);  United States v. Mendoza-Lopez, 7 F.3d 1483, 1487 (10th Cir.1993) (adopting Second Circuit's position in United States v. Restrepo, 999 F.2d 640, 642-46 (2d Cir.), cert. denied, 510 U.S. 954, 114 S.Ct. 405, 126 L.Ed.2d 352 (1993), that the fact that deportable aliens face more severe conditions of confinement is not grounds for sentencing departure), cert. denied, 511 U.S. 1036, 114 S.Ct. 1552, 128 L.Ed.2d 201 (1994).

The third fact that the court used to support its finding of “super acceptance of responsibility” was Garza's significant efforts at post-offense rehabilitation while in prison.   These efforts were exemplified by Garza's tutoring of other inmates in English.2  The district court also erred by invoking this fact to justify departure.   This Circuit has repeatedly held that post-offense rehabilitation is an improper ground for downward departure below that authorized by the acceptance of responsibility provision, even in extraordinary circumstances.   E.g., Ziegler II, 39 F.3d at 1061-62;  Mendoza-Lopez, 7 F.3d at 1486-87;  Gaither, 1 F.3d at 1042;  United States v. Ziegler, 1 F.3d 1044, 1048-50 (10th Cir.1993) (“Ziegler I ”).   These holdings stemmed from our conclusion that the Sentencing Commission has already fully and adequately accounted for post-offense rehabilitation by allowing sentencing courts to consider such efforts in determining a defendant's eligibility for the base offense reductions authorized in § 3E1.1.   See Ziegler II, 39 F.3d at 1061;  Ziegler I, 1 F.3d at 1047.   While these cases dealt specifically with post-offense drug rehabilitation, their reasoning is applicable here.   See U.S.S.G. § 3E1.1, application note 1(g) (listing drug treatment as only one example of the “post-offense rehabilitative efforts” that are taken into consideration when applying § 3E1.1).

Thus, while the district court appropriately could have considered Garza's commendable rehabilitation efforts in granting the three-level reduction in Garza's base offense permitted by U.S.S.G. § 3E1.1, and in selecting the particular sentence within the 57 to 60 month sentencing range, these efforts “may play no further role in [the] court's sentencing analysis.”   See Ziegler II, 39 F.3d at 1061.

The final fact that the district court relied on to support its finding of “super acceptance of responsibility” was that Garza has used his prison income for the support of his minor daughter.   Reliance on this factor was similarly misplaced.   This court has held that, pursuant to the Commission's policy statement in U.S.S.G. § 5H1.6, a defendant's family ties and responsibilities are not ordinarily relevant in determining whether a sentence should be outside the applicable guideline range.3  See, e.g., Ziegler II, 39 F.3d at 1062 (rejecting the view that defendant's marriage and support of three minor children could be used to support a downward departure for extraordinary acceptance of responsibility).

This court has acknowledged “that there may be extraordinary circumstances where family ties and responsibilities may be relevant to the sentencing decision.”  United States v. Pena, 930 F.2d 1486, 1495 (10th Cir.1991) (upholding departure where defendant was sole provider of her infant child, was responsible for her teenage daughter and that daughter's own infant, and her offense was a single act of aberrant behavior).   However, the fact that Garza uses portions of his prison income to help support his daughter, who lives with and is cared for by her mother, is not the type of extraordinary circumstance contemplated by Pena.   See United States v. Shoupe, 929 F.2d 116, 121 (3d Cir.) (holding that the fact that defendant paid regular child support to his minor son who resided with defendant's former wife did “not show such extraordinary family ties and responsibilities as to justify a departure”), cert. denied, 502 U.S. 943, 112 S.Ct. 382, 116 L.Ed.2d 333 (1991).

Garza also argues that even if none of the factors listed by the district court could justify downward departure independently, they justify departure when “evaluated in their totality.”   Appellee's Br. at 14.   This court has acknowledged the possibility that some unique combination of factors could constitute the “mitigating circumstance” warranting downward departure under 18 U.S.C. § 3553(b).   See Ziegler II, 39 F.3d at 1063.   However, the combination of factors in this case-each of which is either adequately taken into account by the Guidelines or is an inappropriate factor for a sentencing court to consider-does not present such a unique scenario.

We agree with the district court that Garza's post-offense conduct has been commendable.   And there is no dispute that the district court appropriately could have considered these characteristics when granting the three-level base offense reduction authorized by § 3E1.1 and when selecting a sentence within the applicable sentencing range.   These facts do not, however, “admit of a factor not adequately taken into account by the Sentencing Commission which would justify departure,” and therefore do not support the court's additional downward departure of three offense levels.   See Ziegler II, 39 F.3d at 1061.


Because there is no legitimate basis for the district court's downward departure, we again REVERSE and REMAND with instructions that the district court vacate the sentence and resentence Garza without departing from the applicable guideline range.


1.   The district court's findings indicate that it may have relied on Garza's cooperation in its § 3E1.1 analysis because of its dissatisfaction with the prosecution for not filing a § 5K1.1 motion that would have specifically authorized the court to depart.   See Findings, at 4 (“This case is one of several that has caused the Court to question the fairness of the United States Attorney in applying § 5K1.1.”).  However, this court has held that a district court may second-guess the government's refusal to make a § 5K1.1 motion only if:  (1) the refusal violated an agreement with the government;  (2) the refusal was based on an unconstitutional motive;  or (3) it was an “egregious” case where the prosecution refused to file a motion despite overwhelming evidence that the defendant's assistance was so substantial “as to cry out for meaningful relief.”  Lee, 989 F.2d at 379-80 (internal quotation omitted).   In this case, there is no indication that the district court's downward departure was based on a determination that the prosecution's failure to file a § 5K1.1 motion fell into one of these three categories.   See Findings, at 4 (“This Court has no desire to intrude into the proper exercise of prosecutorial discretion ․”).   Because there is no evidence that any of Lee's exceptions to § 5K1.1 apply, nor has Garza argued that the district court's departure was warranted under one of Lee's exceptions, see Appellee's Br. at 16-18, we cannot uphold the downward departure on that ground.

2.   Although the district court's findings did not list other specific examples of Garza's rehabilitation efforts, the court referred to the “circumstances” listed in Garza's Sentencing Memorandum.   Findings, at 3.  That memorandum noted that Garza had completed a required 40-hour course on drug and alcohol abuse and had received excellent to outstanding work evaluations during incarceration.   R.O.A. Vol. II, at 2 ¶ 6.

3.   To the extent that the district court relied on Garza's financial support of his daughter not as an indication of family responsibilities, but as further evidence of Garza's post-offense rehabilitation, such reliance is precluded under our above analysis of rehabilitative efforts.

EBEL, Circuit Judge.

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