On Appeal from the United States District Court for the Eastern District of Pennsylvania, Crim. Nos. 88-00107-02; 88-00107-01
Gibbons, Chief Judge, Hutchinson, Circuit Judge and Brotman, District Judge*fn*
Brahim Hodzic and Dimitrise Uca appeal from judgments of sentence imposed following the entry of their guilty pleas to charges of violating 18 U.S.C. §§ 371, 922 (1982 & Supp. II, 1986) (conspiracy to commit federal firearms offenses). Since the offenses were committed after November 1, 1987, their sentence is governed by the Sentencing Reform Act of 1984, 18 U.S.C.A. §§ 3551-3585 (West 1985 & Supp. 1988). In both cases the district court departed upwardly from the guideline sentence. Hodzic and Uca each contend that the upward departure was not permissible because the circumstances relied on by the district court had been taken into account by the Sentencing Commission, that the court's statement of reasons for the upward departure is inadequate, and that the sentence imposed is unreasonable. We conclude that in each case no upward departure was permissible. Thus, we will reverse and remand for resentencing within the Sentencing Guidelines.
Hodzic and Uca attempted to purchase fifty-six guns in Pennsylvania for delivery in New York, and ultimate shipment overseas. Unfortunately for them, they were dealing with a government sting operation. As a result they were each indicted on one count of conspiracy to commit federal firearms offenses in violation of 18 U.S.C. §§ 371, 922.*fn1 Each entered into a plea agreement in exchange for a government promise to recommend that the court reduce their sentences pursuant to Chapter 3, Part E, § 3E1.1 of the Sentencing Guidelines for acceptance of responsibility. Sentencing Guidelines, Chap. 3, Part E - Acceptance of Responsibility, § 3E1.1, at 3.21 (1988).
At the sentence hearing the government made such a recommendation, and asked the court to impose sentences in accordance with the guidelines. The Probation Department in its presentence reports, however, recommended sentences in excess of the guidelines because the object of the conspiracy posed threats to community safety and welfare. The Probation Department recommended for Hodzic twenty-four months in prison, three years of supervised release, and $5,050 in fines and special assessments. It recommended for Uca eighteen months in prison, three years of supervised release and $1,050 in fines and special assessments. In Uca's case the court adopted the recommendation of the Probation Department. In Hodzic's case the court exceeded them. Hodzic received a sentence of thirty months imprisonment, three years of supervised release, and $2,250 in fines and assessments.
The Guidelines sentences, as calculated by the Probation Department, prescribe a range of incarceration for Hodzic of between six and twelve months, and for Uca of between two and eight months. Supervised release depends on the length of the sentence imposed. Sentencing Guidelines, Chap. 5, Part D - Supervised Release, at 5.15 -.16 (1988). The amount of a fine depends on the length of imprisonment, probation, or supervised release. Id. at Part E Restitution, Fines, Assessments, Forfeiture, § 5E4.2, at 5.18 (1988). Thus the court's upward departure affected each element of both sentences.
In Mr. Hodzic's case the court gave the following explanation for the upward departure:
Okay. The statutory maximum sentence on count 1 is five years' imprisonment. The guideline range is 6 to 12 months. I am departing from the guideline range and imposing a sentence of 30 months. Mr. Hodzic's offense and Mr. Hodzic possessing 56 untraceable handguns poses a serious threat to the public safety and welfare of the community. There's no lawful purpose for these guns. We're not talking about one gun or two guns, we're talking about 56 untraceable handguns which translates in my mind to at least 56 potential acts of violence in this country or in another country. The use of handguns, unlicensed handguns, causes the perpetuation of criminal activity of persons so inclined to rob, maim, start their own private wars, even drug wars in cities such as Philadelphia.
I also find it difficult to understand why the defendants would not have had some purpose in mind for these 56 weapons that could be articulated here today.
In Mr. Uca's case the explanation for the upward departure was as follows:
I'm departing from the guidelines upward because of the threat posed to the community by the defendant. As best I can surmise, and taking the evidence in the light most favorable to the defendant, he was involved in the attempted sale of 56 handguns to an Albanian for overseas use, an illegal use which would have required transport outside of the country.
On the other hand, according to the defendant there was no clear purpose, which translates into an undefined purpose which means that these untraceable guns had a market value in this country or elsewhere precisely because they were untraceable.
In response to a question by Uca's counsel, the court elaborated:
I do not find that the guidelines are adequate to address an issue of intended sale of handguns for an overseas war, small or large. I do not find the guidelines speak to the characteristic of the guns being untraceable. I do not find the guidelines speak to the ...