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U.S. v. Sally

May 28, 1997

UNITED STATES OF AMERICA,

APPELLEE

v.

ALBERT SALLY, A/K/A "PJ",

APPELLANT



ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

(D.C. Criminal No. 90-cr-00107-8) District Judge: Hon. John P. Fullam

Before: SCIRICA, COWEN, and NYGAARD, Circuit Judges

NYGAARD, Circuit Judge

Filed May 28, 1997

OPINION OF THE COURT

Albert Sally appeals his sentence for convictions on drug charges stemming from participation in a multi-member crack conspiracy. Sally argues that the district court erred by failing to depart downward from the guideline range under Section 5H1.1 of the United States Sentencing Guidelines because of his youth when he committed the offense and evidence of his subsequent maturation. We find no error in the district court's refusal to depart under Section(s) 5H1.1. However, in light of the recent decisions in Koon v. United States, ___ U.S. ___, 116 S.Ct. 2035 (1996), and United States v. Brock, 108 F.3d 31 (4th Cir. 1997), we will vacate Sally's sentence and remand the cause to the district court for it to determine whether Sally is entitled to a downward departure based on his post-conviction rehabilitation efforts.

I.

Albert Sally was a bagger and look-out for a crack conspiracy from August 1988 through February 1989. He was seventeen years old when he became involved in the conspiracy and he turned eighteen on November 2, 1988, some three and one-half months before the conspiracy ended. As a result of his participation in the conspiracy, Sally was indicted and convicted of drug charges as well as charges related to the use of a gun in drug trafficking. He was sentenced on December 17, 1991.

More than five years later, on June 24, 1996, Sally's convictions for using a gun during drug trafficking were dismissed pursuant to a Section(s) 2255 motion. As a consequence, his sentence was vacated and a resentencing hearing held on September 24, 1996. At the hearing, Sally's counsel requested that the district court consider a downward departure based on a combination of two factors: (1) the fact that Sally was seventeen years old during half the time he participated in the conspiracy; and (2) the fact that since he was first jailed, Sally had demonstrated increased maturity by earning a GED and an additional nine college credits. These factors, Sally's counsel argued, presented sufficiently "unusual circumstances" to permit the court to depart downward, notwithstanding the Guidelines' ordinary prohibition against considering age as a factor in deciding to depart from the Guidelines.

The district court rejected Sally's request for a downward departure, reasoning as follows:

I expressly conclude in the circumstances of this case I do not have the authority to depart downward . . . . My present conclusion is given the Guideline requirement [that] ordinarily age is not a factor for a downward departure I don't think I can find in this case it is sufficiently extraordinary to permit me to do it. Therefore, I would conclude I lack the authority to do it. If I had the authority to do it, I would seriously consider a downward departure still further not because I think the sentence originally imposed was incorrect but as sort of a reward to the Defendant for having made valiant efforts to turn his life around during the time he has been in jail.

The district court then proceeded to sentence Sally to 168 months, which was the lowest sentence available in Sally's revised Guidelines range. This timely appeal followed.

II.

On appeal, Sally presents two arguments. First, he asserts that the district court incorrectly concluded that it lacked the discretion to grant a downward departure under Section(s) 5H1.1 based on his age. Second, he contends that the facts of his case are extraordinary ...


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