On Appeal from the United States District Court for the Eastern District of Pennsylvania; D.C. Criminal No. 88-00519-12.
Sloviter and Mansmann, Circuit Judges, and Sarokin, District Judge.*fn*
Following a jury trial, Marva Headley was convicted on one count of conspiring to manufacture and distribute cocaine base and marijuana, in violation of 21 U.S.C. § 846 (1982), and another count of possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1). The two counts charged against Headley were part of a 72 count indictment arising out of a large criminal drug manufacturing and distributing enterprise in Philadelphia run by Robert Smith, his two brothers, and Smith's girlfriend Robin Byrd from 1985 to 1988. The Smith Narcotics Organization (SNO) was a well-organized operation. Cocaine was delivered from Brooklyn, New York, and Miami, Florida, and manufactured in Philadelphia, Pennsylvania, into cocaine base, or crack, which was packaged and sold at approximately 20 different locations in Philadelphia. Many of these "retail" outlets were fortified to make detection and arrest by the police more difficult. SNO employed many individuals to sell drugs and to act as lookouts.
Twenty-three individuals were indicted. Many pled guilty. Headley was tried along with eight other alleged co-conspirators. Robin Byrd, one of the leaders of SNO who pled guilty, testified that Smith told her that on several occasions Headley brought cocaine from Brooklyn to Philadelphia for the Smith organization. Harold Lewis testified that he saw Headley twice at the location where drugs were packaged and distributed. Although he never saw Headley with drugs, Lewis said that drugs would appear after her visits.
The district court fixed Headley's offense level at 36 based on the quantity of drugs involved. Although the presentence report indicated that the extent of Headley's involvement in SNO "may have been limited to that of being a courier on several occasions," Headley's counsel did not argue that adjustment in the offense level was appropriate for Headley's minor or minimal role in the offense as allowed by section 3B1.2 of the United States Sentencing Guidelines (U.S.S.G.). Without referring to the issue of adjustment, the district court did invite Headley's counsel to "talk [it] into the lower part of the range" or "into departing below." App. at 30. There was evidence that Headley lived in Brooklyn with her five children fathered by Robert Smith, the leader of SNO, who ranged in age from 11 months to 11 years. In the course of the sentencing hearing, the court considered departure based on family ties and responsibilities, U.S.S.G. § 5H1.6, but concluded that it had no authority to depart downward on that basis. Headley was sentenced on October 5, 1989 to 17 1/2 years, the minimum in her guideline range.
On appeal, Headley argues that her counsel's failure to argue the appropriateness of adjustment for her role in the offense constituted ineffective assistance of counsel, that the court erred in not considering adjustment for her role in the offense sua sponte , and that the district court's refusal to depart downward was based on its mistaken belief that it lacked the legal authority to do so on the basis of family ties and responsibilities.*fn1
Headley, a single mother, argues that the district court erred as a matter of law in concluding that it lacked authority to depart downward from the guideline range based on the psychological impact that a lengthy sentence would have on her five young children. Before addressing her argument, we must consider the basis of the court's non-departure, for this court has no jurisdiction to review a district court's discretionary refusal to depart below the guidelines. See United States v. Denardi, 892 F.2d 269, 271-272 (3d Cir. 1989). It appears from the record that the district court believed that it lacked legal authority to depart and therefore we have jurisdiction to consider whether that belief was erroneous as a matter of law.
The sentencing statute permits departure from the guideline range only when a court finds "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 and that should result in a sentence different from that described." 18 U.S.C. § 3553(b) (1982). The government argues that the Sentencing Commission considered and rejected Headley's basis for departure in section 5H1.6. That section provides,
Family ties and responsibilities and community ties are not ordinarily relevant in determining whether a sentence should be outside the guidelines. Family responsibilities that are complied with are relevant in determining whether to impose restitution and fines. Where the guidelines provide probation as an option, these factors may be relevant in this determination.
U.S.S.G. § 5H1.6. The "not ordinarily relevant" language of section 5H1.6 suggests that in extreme circumstances departure based on family ties and responsibilities is permissible. See United States v. Sharpsteen, 913 F.2d 59, 63 (2d Cir. 1990) ("The clear implication of section 5H1.6 is that if the court finds that the circumstances related to family ties and relationships are extraordinary, it is not precluded as a matter of law from taking them ...