On Appeal from the United States District Court for the Middle District of Pennsylvania. (D.C. Criminal No. 90-00025).
Before: Scirica and Alito, Circuit Judges and Pollak, District Judge*fn*
This criminal appeal presents a narrow legal issue: whether a sentencing court may depart downward on a defendant's base offense level if the defendant's career offender status overrepresents his criminal history and likelihood of recidivism. In Kenneth Shoupe's previous appeal we held that under these circumstances a sentencing court may depart downward in the criminal history category. See United States v. Shoupe, 988 F.2d 440, 444-47 (3d Cir. 1993)(Shoupe II)(vacating and remanding for resentencing in consideration of Sentencing Guideline § 4A1.3).*fn1 Because career offender status enhances both the criminal history and base offense level categories, we hold a sentencing court may also depart downward in the base offense level. Therefore, we will vacate defendant's sentence and remand for resentencing.
This is the third time we review Kenneth Shoupe's sentence. See United States v. Shoupe, 929 F.2d 116 (3d Cir.)(Shoupe I)(vacating and remanding for resentencing), cert. denied, 116 L. Ed. 2d 333, 112 S. Ct. 382 (1991); Shoupe II, 988 F.2d 440.*fn2 On June 8, 1990, Shoupe pled guilty to one count of distributing cocaine in violation of 21 U.S.C. § 841(a)(1)(1988). Conviction on this count carries a base offense level of 12,*fn3 and Shoupe's criminal history level was V because of three prior convictions. Ordinarily, this combination results in a sentencing range of 21 - 27 months, Shoupe I, 929 F.2d at 122 n.1 (Rosenn, J., Dissenting), but Shoupe's previous felony convictions qualified him for an enhanced sentence under the sentencing guidelines' career offender provision, § 4B1.1.*fn4 Therefore, Shoupe's criminal history level increased from V to VI, his base offense level rose from 12 to 32, and his sentencing range increased to 168 - 210 months.
Before Shoupe's initial sentencing, defense counsel asked the court to depart below the guideline range, citing several mitigating factors including defendant's youth and immaturity at the time he committed the first two felonies, the short time span between those crimes,*fn5 and defendant's need to support his dependent child. See Shoupe I, 929 F.2d at 119. The district court agreed and, after reducing defendant's offense level to 22, the able and experienced district Judge imposed a sentence of 84 months. Id.
We reversed on appeal. Shoupe I, 929 F.2d 116 (3d Cir. 1991). Noting that the guidelines require district Judges to impose sentences within the prescribed range "unless the court finds . . . an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission," we held the district court erred by departing from the prescribed range because the factors listed by the district court had been adequately considered by the Sentencing Commission. Id. at 120-21.
In a Dissenting opinion, Judge Rosenn argued the majority did not consider § 4A1.3, a policy statement which expressly permits a sentencing court to depart from the guideline range where the career offender provision overstates a defendant's criminal history.*fn6 Though not argued by the parties, Judge Rosenn maintained "the sentencing Judge here, in effect, concluded that the career offender provision . . . overrepresented the seriousness of Shoupe's criminal history," id. at 122 (Rosenn, J., Dissenting), and concluded the departure should be affirmed because § 4A1.3 allows a sentencing court to apply the career offender provision flexibly, id.
Not surprisingly, Shoupe sought a downward departure on remand, claiming his career offender status overstated his criminal history and citing the same mitigating factors the district court had considered at his first sentencing. Shoupe II, 988 F.2d at 444. The district court interpreted our decision in Shoupe I as precluding it from considering those factors in a motion for downward departure. Therefore, it declined to depart from the prescribed sentencing range and sentenced Shoupe to a term of 168 months, the lowest sentence under the applicable range. Id.
On Shoupe's second appeal the government argued that the district court properly refused to depart from the guideline range because 18 U.S.C. § 3553(b) requires a court to impose a sentence within the range "unless 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 . . . . " 18 U.S.C. § 3553(b)(1988); see also U.S.S.G. § 5K2.0, p.s. (implementing 18 U.S.C. § 3553). We reversed and remanded, holding a court need not find that the Sentencing Commission failed to consider a factor in order to make a downward departure under § 4A1.3, id. at 447, since "the statutory authority for promulgation of § 4A1.3 lies not in 18 U.S.C. § 3553(b), but in the basic provision of the Sentencing Reform Act that gives the Sentencing Commission the authority . . . to take into account, where relevant, the defendant's criminal background," id. at 446.
On remand Shoupe asked the district court to make a downward departure under § 4A1.3 and sentence him without applying the career offender provision. The district court declined, believing our decisions in Shoupe I and Shoupe II, taken together, indicated that a downward departure was permissible only in the criminal history category, but not in the offense level. Therefore, the court reduced Shoupe's criminal history level from VI to III and, despite its belief that the reduced sentence "still over represents the offense in ...