November 7, 1994 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 94-1151
No. 94-1227
UNITED STATES OF AMERICA,
Appellant,
v.
GARY P. WLODYKA,
Defendant, Appellee.
____________________
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Martin F. Loughlin, Senior U.S. District Judge] __________________________
____________________
Before
Torruella, Chief Judge, ___________
Boudin and Stahl, Circuit Judges. ______________
____________________
Peter E. Papps, First Assistant United States Attorney, with whom _______________
Paul M. Gagnon, United States Attorney, was on briefs for the United ______________
States.
Charles S. Temple, by Appointment of the Court, with whom ___________________
Upshall, Cooper & Temple, P.A. was on brief for appellee. _______ _____________________
____________________
____________________
Per Curiam. On January 26, 1990, a jury convicted Gary ___________
Wlodyka of possession with intent to distribute marijuana and
cocaine. 21 U.S.C. 841(a)(1). At sentencing, the district
judge concluded that the defendant had an offense level of 32
and a criminal history category of 6, generating a guideline
range of 210 to 262 months. Departing downward, the court
sentenced defendant to 168 months' imprisonment.
The grounds for the departure included a harrowing
childhood, involving the suicide of one parent, attempted
suicide by another, a stint in an orphanage, and finally rape
by an alcoholic stepfather and continued physical and sexual
abuse; service in the Marine Corps in Vietnam and subsequent
addiction to drugs (derived in part from treatment for injury
while in service) and later treatment for post-traumatic
stress disorder; and present infection with the HIV virus.
In the sentencing memorandum, the court noted: "overkill,
life sentence, defendant dying from AIDS, Vietnam veteran,
drug addicted."
On June 18, 1990, Wlodyka asked the district court to
have an appeal filed on his behalf. The district court
denied the request as untimely, and Wlodyka appealed. On
June 27, 1990, this court in an unpublished order sustained
the district court's action. This court declined to pass on
the claim that defendant had not been given timely notice of
-2- -2-
his right to appeal, noting that relief on this ground should
be sought under 28 U.S.C. 2255.
After an unsuccessful effort to reduce his sentence by
motion under Fed. R. Crim. P. 35, a ruling summarily affirmed
by this court on appeal, United States v. Wlodyka, 953 F.2d _____________ _______
632 (1st Cir. 1991) (per curiam), Wlodyka filed a motion
under 28 U.S.C. 2255. He argued that the district court
had failed at the time of sentencing to advise him of his
right to appeal, as required by Fed. R. Crim. P. 32; he also
urged ineffective assistance of counsel at sentencing, a
claim later rejected and not appealed by Wlodyka. After
hearings in late 1993 and early 1994, the district court
determined that it had not complied with Rule 32 and granted
the defendant a new sentencing hearing.
On January 20, 1994, a new sentencing hearing was held.
Defendant presented evidence, addressed to the events in his
history already described, but more extensive than the
evidence offered at the time of his original sentence. The
district court gave Wlodyka a two-point reduction for
acceptance of responsibility, which had been withheld in the
original sentence, and determined that he had reduced mental
capacity as well as a serious medical condition due to his
current HIV affliction. Departing downward, the court then
sentenced the defendant to 100 months of imprisonment. The
government now appeals.
-3- -3-
On appeal, the government does not dispute that
defendant was entitled to be resentenced because of the Rule
32 violation but argues that the only remedy available to the
district court was to vacate the original sentence and then
reimpose it in precisely the same terms. The government's
premise is that vacating the old sentence but then reimposing
the same sentence gives the defendant just what he or she
would have had if the Rule 32 warning had been originally
given, that is, a right to appeal from the sentence
originally imposed. Anything more, says the government, is a
second bite at the apple and a potential windfall for the
defendant.
In the ordinary case, we agree that the natural and
adequate remedy is to vacate and reimpose the same sentence.
But being unable to envisage every possibility, we are
unwilling to establish an ironclad, mechanical rule. In any
event, this is certainly not a jurisdictional matter, and the
objection now raised by the government was not sufficiently
brought home to the district judge at or before resentencing.
Accordingly, we think that the government has waived its
potential objection in this case.
At the original section 2255 hearing, the government's
main argument was that the error had been harmless because
Wlodyka necessarily knew that he had a right to appeal, and
the appeal was in any event frivolous. Although the
-4- -4-
government did refer briefly to the possibility of reimposing
the same sentence, this somewhat buried assertion did not
clearly apprise the district judge of the government's
present position that this was the most he could legally do.
At the resentencing itself, the government's argument, which
was extensive and thorough, was directed to explaining why on
the merits no lower sentence was appropriate.
The government's next claim is that the reduction
violates the law of the case doctrine. The government points
to nothing specific that the district court said earlier from
which it is now departing. This court affirmed the denial of
the Rule 35 motion without opinion and has never spoken
directly about the sentence. What has happened is that the
district court, on somewhat different evidence, has
determined that the departure should be larger than it
originally determined.
In all events, without suggesting that the law of case
argument is frivolous, we think it is unnecessary to pursue
it. As with the limitation-of-remedy issue already
discussed, we think that the government did not bring this
claim squarely to the attention of the district court and
cannot rely upon it on appeal. Here, too, the government did
make timely references in the district court to prior
rulings; but the suggestion that the district court was bound
-5- -5-
by law of the case does not seem to have been squarely
presented.
The government's next argument is that the district
court erred at resentencing in granting a two-level reduction
for acceptance of responsibility. The district court had
declined to do so at the original hearing because it thought
that the defendant had accepted responsibility but also
thought that it was barred from granting an adjustment
because Wlodyka was a career offender. The government agrees
that this was error and that the acceptance of responsibility
adjustment is available to Wlodyka if he otherwise qualifies.
We see no reason to discuss, or even describe, the
merits of the acceptance of responsibility dispute beyond
saying that both sides appear to have colorable arguments.
The sentence in this case was based on a departure from the
guideline range. The district judge knew precisely what
Wlodyka had said about his own culpability and when he had
made the statements. Whether Wlodyka's statements were
technically an acceptance of responsibility or fell barely
short appears to have had no effect on the 100-month sentence
ultimately selected.
The government's final contention is a kitchen-sink
argument that the entire departure was based on impermissible
grounds. While the government did not appeal the earlier
substantial departure, its current position--it appears--is
-6- -6-
that no departure at all is now justified. How this position
is to be reconciled with its prior law of case argument is
not explained. In all events, the government concedes that
the grounds cited or apparently considered by the district
court are for the most part "discouraged" but not prohibited
grounds for departure.
A clear-cut legal issue would be presented if the
district court had based the departure upon any ground that
was legally impermissible. The government does in fact claim
that the court was not entitled to consider the "childhood
trauma" suffered by the defendant because of U.S.S.G.
5H1.12, which provides in full: "Lack of guidance as a youth
and similar circumstances indicating a disadvantaged
upbringing are not relevant grounds for imposing a sentence
outside the applicable guideline range." It is sufficient to
say that the catalogue of horrors already recited go far
beyond lack of guidance and a disadvantaged upbringing.
Concluding that the district court did not act upon any
specifically forbidden grounds, we are left with the question
whether the district court's action was unreasonable, an
issue that is open to judicial review under the Guidelines.
18 U.S.C. 3742(e)(3). Although the issue depends very much
on the individual facts, we recognize that review of
departures is contemplated by the statute and is intended to
serve a function. With this in mind, we have looked
-7- -7-
carefully at the transcript of the sentencing hearing setting
out evidence pertaining to Wlodyka and the district court's
explanation for its action. Having given the matter
searching consideration, we conclude that the departure
granted was not outside the bounds of reason and that it is
time for this case to be brought to a close.
Affirmed. ________
-8- -8-