USCA1 Opinion

October 26, 1995

[Not for Publication]

[Not for Publication]

United States Court of Appeals

United States Court of Appeals
For the First Circuit
For the First Circuit
_____________________

No. 94-2136
UNITED STATES,

Appellee,

v.

JOHN DEGRANDIS,

Defendant, Appellant.

_____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Joseph L. Tauro, U.S. District Judge]

___________________

_____________________

Before

Selya and Stahl, Circuit Judges,

_______________

and Gorton*,

District Judge.
_______________

_____________________

John C. Doherty for appellant.

_______________

Jeanne M. Kempthorne, Assistant United States Attorney, with

____________________
whom

Donald K. Stern, United

_______________

the United States.

States Attorney, was

on brief for

_____________________

_____________________

____________________

*Of the District of Massachusetts, sitting by designation.

Per

Curiam.

In September

of 1994,

the district

___________

court

sentenced

months1

John DeGrandis

and three

years of

to

prison

term of

151

for a

bank

supervised release

robbery he committed in January 1992.

DeGrandis now

appeals

his sentence, challenging the district court's ruling that it

lacked authority

downward from

under the

Sentencing Guidelines

the prescribed

to depart

sentencing range based

on his

lack of youthful guidance.2

Under

the

Guidelines in

sentencing, see U.S.S.G.

___

youth

and similar

upbringing"

U.S.S.G.

1B1.11(a), "lack

at

grounds for

(added

by

the time

of

of guidance as a

circumstances indicating

were forbidden

5H1.12.

effect

a disadvantaged

downward departure.

amendment,

Nov.

1992).

____________________

1.

DeGrandis pled guilty without a plea agreement.

the

Guidelines

district

force at

court sentenced

Guideline

the

time

DeGrandis

of sentencing,

to the

the

minimum of

the

range based on an adjusted offense level of 29 and

a criminal
offender

in

Applying

history category
provisions

U.S.S.G.

of

3E1.1(b), the

of VI,

pursuant to the

U.S.S.G.

4B1.1.

court granted

career

Pursuant

DeGrandis a

to

three-

level reduction for acceptance of responsibility.

2.

At

his

sentencing

childhood physical
for

hearing,

DeGrandis

abuse as a factor

lack of youthful guidance.

advanced

his

supporting a departure

Now, in his appellate brief,

he seems to suggest that childhood abuse is a separate ground

for departure, distinct
he

from lack of youthful guidance.

But

does not make that clear, he makes no separate arguments,

and

he

points

separately.

to

We,

no precedent
therefore,

subsumed in his lack

would reach the
See
___
cert.
_____

consider

494

of youthful guidance arguments, but

we

v. Zannino,
_______
U.S.

1082

childhood

abuse
as

conclusory fashion, unsupported

are deemed waived).

childhood

abuse

same result if we

United States
_____________
denied
______

treating

considered it separately.

895 F.2d
(1980)

1, 17
(claims

by developed

(1st Cir.),
raised

in

argumentation,

-22

DeGrandis

substantive

argues,

change

however,

to

the

that

5H1.12

Guidelines

effected

subsequent

to

his

offense, and therefore its application to him was a violation

of the Ex Post Facto Clause of the Constitution.

See United
___ ______

States v. Clark, 8 F.3d 839, 844-45 (D.C. Cir. 1993) (holding

______
_____

that

the

addition

of

5H1.12 was

substantive

change

implicating Ex

Post Facto

Johns, 5 F.3d
_____

States
______

1267, 1272

Clause); accord United States v.

______ ______________

(9th Cir. 1993);

see also
___ ____

United
______

v. Prezioso, 989 F.2d 52, 53 (1st Cir. 1993) (holding

________

that Guideline amendments that are "substantive" rather

than

"clarifying" implicate Ex Post Facto Clause).

We need

Assuming

but

not reach DeGrandis' ex

not deciding

that

(1)

post facto claim.

the district

court's

decision not to depart downward was based on a belief that it

lacked legal

authority to depart

based on lack

of youthful

guidance and (2) the district court, contrary to that belief,

did

have

such

authority,3

we hold

nonetheless

that

the

factual record does not support a downward departure for lack

of youthful guidance.

This

youthful

circuit

guidance was

has

not

decided

permissible

whether

ground for

lack

of

departure

____________________

3.

In order to assume

further

assume

permissible

that

lack

of

for departure

youthful
at the

guidance

must
was

time of

the bank

robbery, and therefore the application of Guideline

5H1.12,

which was

ground

that such authority existed, we

in effect at the time of sentencing but not at the

time of the offense, would violate the Ex Post Facto Clause.

-33

before

5H1.12 was added to the Guidelines in 1992; only the

Ninth and

departures.

(D.C.

District of

See
___

Columbia Circuits have

United States
_____________

v. Clark,
_____

8 F.3d

839, 845

Cir. 1993); United States v. Anders, 956 F.2d 907, 913

_____________
______

(9th Cir. 1992), cert. denied,

_____ ______

113 S.Ct. 1592 (1993); United

______

States v. Floyd, 945 F.2d 1096, 1099

______
_____

and

approved such

Anders were
______

5H1.12.

decided

The District of

upheld departures

for lack

5H1.12 became effective,

before the

(9th Cir. 1991).

addition of

Floyd
_____

Guideline

Columbia and Ninth Circuits

have

of youthful guidance

even after

applying the pre-1992

Guidelines

to avoid

ex post facto problems.

Clark, 8 F.3d at 845 (D.C.

_____

Cir. 1993); Johns, 5 F.3d at 1272 (9th Cir. 1993).

_____

The Ninth Circuit has

of

youthful guidance

based

approved departures for lack

on evidence

education,

of abandonment

and imprisonment

parents,

lack of

provided

that there is a nexus between those factors and the

crimes for which the defendant

956 F.2d

at 913; Floyd, 945

_____

as a

by

is being sentenced.

F.2d at 1099.

youth,

Anders,
______

The District of

Columbia Circuit relied on Anders and Floyd in holding that a

______
_____

combination of

lack

of

departure.

childhood exposure

youthful

Clark,
_____

guidance

was a

8 F.3d

at 845.

to domestic

permissible

Cf.
___

violence and

ground

United States
_____________

for

v.

Haynes,
______

985 F.2d 65, 68-69 (2d Cir. 1993) (rejecting lack of

youthful guidance

defendant failed

as grounds for departure

in

any

event to

make

and stating that

out

its

elements

-44

(abandonment by parents, lack of

as a minor), citing Floyd,

education, and imprisonment

945 F.2d at 1099).

Cognizant of

_____

these holdings from other

that

lack of

"special

youthful

circuits, we shall assume arguendo

________

guidance

circumstance[]

was,

of

in January

the

1992,

`kind'

that

the

Guidelines, in principle, permit[ted] the sentencing court to

consider."

United States
_____________

v. Rivera, 994 F.2d 942,

______

951 (1st

Cir. 1993).

In

Rivera, this
______

legal analysis for

946-52.

court

explained the

departures from the

In assessing

appropriate

Guidelines.

Id.
__

at

circumstances "where the Guidelines do

not expressly forbid, encourage, or discourage departures . .

.,

the district court will

much to

depart) by examining

decide whether (and,

the `unusual' nature

if so, how

of these

circumstances."

the judge,

this

Id. at 949.
__

considering

case

fall

Put differently, "the law tells

departure, to

within

circumstances]

or

Rivera directs
______

the appellate

court's

of,

determination of

and respect

case."

is it

the

for, the

Id. at 952.
__

At the

ask basically,

"heartland"

an unusual

[of

case?'"

Id.
__

court to "review

`unusualness' with

trier's superior

'Does

typical

at 948.

the district

full awareness

`feel' for

the

We apply this framework for review here.

conclusion of the

sentencing hearing,

the

district judge stated that, if he had the authority to depart

-55

for lack of youthful guidance, he would have imposed a prison

sentence

of 90 months instead

judge, however, made no

of 151 months.

The district

specific factual findings to support

such a departure, other than to implicitly adopt the facts in

the

presentence report

report.

and

the

mental

health

evaluation

The comments of the district judge are not entirely

clear.

At

one point

in the sentencing

hearing, he

that the mental health evaluation report did

stated

not support the

___

requested departure for lack of youthful guidance; at a later

point, he stated that the report

Although

than

did support such departure.

the basis for the district court's decision is less

certain,

we

have

nonetheless

sentencing record with the

the

entire

"respect for the trier's superior

`feel'" called for in Rivera.

______

Id.
__

Unfortunately for DeGrandis,

his youth are

examined

the circumstances

of

not unusual among criminal offenders, and thus

do not justify

alcoholic father

the departure he seeks.

who was

that abuse was directed

physically

Although he had

and verbally

primarily toward DeGrandis'

an

abusive,

mother.

Nor was DeGrandis

years.

After

abandoned by his parents in

his parents

separated during

his fourteenth

year, he continued to

live with his mother in

his home

of his arrest.

at the time

DeGrandis maintained

lived in South

DeGrandis did not

-66

South Boston,

After the separation,

some contact with his

Boston.

his formative

father, who also

have an

unusual

lack

of

education,

dropped out

distaste

in

for

having done

the ninth

well

grade,

forced busing.

in

school until

apparently because

While

in state

of

prison

he

for

earlier offenses, he earned a General Equivalency Diploma and

took

college

criminal

classes.

DeGrandis'

entanglements

justice system did not begin

with the

until he was nineteen

years old; he had no juvenile adjudications and therefore was

never imprisoned as

a youth.

Although the

suicide of

his

brother in 1988 was no doubt a traumatic event, DeGrandis was

23

years old

therefore does

at the

time of the

not reflect

on

Contrary to DeGrandis' assertion,

unfortunate event

his youthful

and it

circumstances.

these facts do not warrant

a departure for lack of youthful guidance.4

Our

findings

concluded

in

conclusion

the

mental

is

supported

health

by

evaluation

the

clinical

report,

which

that the "impact on DeGrandis of being raised in a

dysfunctional family due to his parents' continuous

fighting

and subsequent separation" was that DeGrandis "developed some

dysfunctional methods

could

but that "he

have decided to change aspects of his life and adopted

a different lifestyle."

of his offense

that

of dealing with stress,"

mental

and at

and

The Guidelines in effect at the time

the time of

emotional

his sentencing

conditions

are not

provided

ordinarily

____________________

4.

Once

again,

departure was

we assume

permissible in

but do

not

decide that

an appropriate case

offense occurred before U.S.S.G.

such a

where the

5H1.12 became effective.

-77

relevant factors for

departure.

U.S.S.G.

5H1.3.

To

the

extent that DeGrandis was mentally or emotionally impacted by

his difficult upbringing, we do not find Degrandis' condition

extraordinary.

from

the

See Rivera, 994 F.2d at 948.

___ ______

record

that

drug addiction

has

It

been

does appear

the

most

powerful demon with which DeGrandis has battled.

If there is

a nexus between his situation as a youth and his crimes, that

nexus is drug addiction.

The need for money to support that

addiction is the most likely motivation for his crimes.

abuse, however,

the Guidelines

was a forbidden grounds

in effect at the

the time of his sentencing.

Thus, we find that

youth do not take

for departure under

time of his offense

U.S.S.G.

and at

5H1.4.

the circumstances of DeGrandis'

him outside the "heartland" of

offender guideline.

To the

made

DeGrandis' background

a finding that

Drug

extent that the

the career

district judge

was sufficiently

unusual to justify a departure for lack of youthful guidance,

that

finding

was

erroneous

under

Rivera's
______

"respectful"

standard

of

resentencing

review.

994

F.2d

at

952.

would therefore be "pointless."

Remand

for

See id. at 953

___ __

("we should not (and would not) order a new proceeding were .

there no

significant

circumstances would

permit

possibility that

the district

order a departure").

-88

the

facts and

court lawfully

to

Accordingly, the sentence

the district judge is affirmed.

________

imposed on DeGrandis

by

-99