Opinions of the United 1997 Decisions States Court of Appeals for the Third Circuit

3-19-1997

United States v. Baird Precedential or Non-Precedential:

Docket 96-1342

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Recommended Citation "United States v. Baird" (1997). 1997 Decisions. Paper 66. http://digitalcommons.law.villanova.edu/thirdcircuit_1997/66

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_____________

NO. 96-1342 _____________

UNITED STATES OF AMERICA,

Appellee

v.

JOHN BAIRD,

Appellant

__________________________________

On Appeal From the United States District Court For the Eastern District of Pennsylvania (D.C. Crim. No. 95-cr-00092-1 __________________________________

Argued: November 6, 1996

Before: BECKER, McKEE, and GARTH, Circuit Judges.

(Filed March 19, 1997)

ELIZABETH K. AINSLIE, ESQUIRE (ARGUED) Ainslie & Bronson 2630 One Reading Center 1101 Market Street Philadelphia, PA 19107

Attorney for Appellant John Baird

MICHAEL R. STILES, ESQUIRE United States Attorney WALTER S. BATTY, JR., ESQUIRE Assistant United States Attorney Chief of Appeals WILLIAM B. CARR, JR., ESQUIRE (ARGUED) Assistant United States Attorney

615 Chestnut Street, Suite 1250 Philadelphia, PA 19106-4476

1 Attorneys for Appellee United States of America

______________________

OPINION OF THE COURT ______________________

BECKER, Circuit Judge.

This is a sentencing appeal. Appellant John Baird is a

former Philadelphia police officer who was assigned to the

infamous 5 Squad of the 39th district. The 5 Squad was

responsible for breaking up drug trafficking operations in an

area of Philadelphia in which drug dealing has been epidemic.

Instead of working to uphold the law, Baird, and those of his

police officer colleagues who were also corrupt, systematically

broke it. Over the course of a number of years, and in instances

too numerous to chronicle here, they executed illegal searches,

detained individuals without legal cause, employed excessive

force against detainees, caused the false prosecution of numerous

individuals, and stole money and property from persons they were

investigating. A seven-count indictment details at least forty-

five such instances.

As of this writing, the City of Philadelphia is still

endeavoring to right all the wrongs caused by the 5 Squad.

Victims of 5 Squad corruption have lodged numerous civil suits

against the police department and the city, and settlements are

costing the city large sums. The District Attorney has been

reviewing prosecutions arising from 5 Squad activities. That

2 review has led to the release from prison of a number of innocent

persons whose convictions rested on evidence wrongfully obtained

or fabricated by 5 Squad officers. A recent newspaper article

reported that, as a result of this corruption, the Philadelphia

District Attorney has dismissed 160 cases and the city has paid

out more than $3.5 million.1

Pursuant to a plea bargain, Baird pled guilty to three

counts of the indictment. The calculation of Baird's sentence

under the Sentencing Guidelines produced an adjusted offense

level of 29 and a criminal history category of I for a sentencing

range of 87 to 108 months. The district court might have

departed downward from the range pursuant to the government's

motion under § 5K1.1 of the Guidelines to reward Baird's

substantial assistance to authorities. Baird's cooperation was

in fact very great, for he produced evidence against his 5 Squad

co-conspirators, leading to numerous arrests. The district court

nonetheless effectively denied the § 5K1.1 motion; it also

factored Baird's cooperation into the sentence in an unusual

manner. Instead of departing downward, the district court

departed upward, imposing a sentence of 156 months (13 years),

while making it clear that it would have imposed an even greater

sentence but for Baird's cooperation. Importantly for this

appeal, the court, in fashioning the upward departure, relied

1. See Howard Goodman, Police-Corruption Panel Appointed, The Philadelphia Inquirer, Jan. 9, 1997, at B1.

3 upon conduct underlying dismissed counts.

Baird, sorely aggrieved by the perception that his

cooperation netted him not a decrease but an increase in his

sentence, has appealed on three grounds. First, he contends that

the district court erred in considering in connection with the

upward departure the conduct underlying counts dismissed as part

of a plea agreement. Second, he submits that the upward

departure was itself improper. Third, he challenges the extent

of the upward departure as unreasonable in light of the treatment

of analogous situations under the Sentencing Guidelines.

Although it would seem that after almost ten years of

experience under the Guidelines the dismissed counts issue should

have been resolved, unfortunately it has not. There exists a

circuit split on the issue, and our own jurisprudence, though

generally recognizing the appropriateness of using conduct

underlying dismissed counts, is clouded by a recent decision

suggesting the opposite. Moreover, whatever the general rule,

Baird argues that the plea bargain sections of the Guidelines

proscribe the use of dismissed conduct to support an upward

departure in the case of a bargained plea. We conclude, however,

that even in the plea bargain context, conduct underlying

dismissed counts may support an upward departure. We have no

difficulty with the remaining issues, believing that an upward

departure was warranted in this case, and that the extent of the

upward departure was not unreasonable. Accordingly, we affirm.

4 I. THE PLEA AGREEMENT AND SENTENCE

As we have noted, Baird pled guilty to three counts of

the indictment. Count Two charged Baird and his codefendants

with Hobbs Act robbery, see

, in connection with

an illegal search of a house. During the search, the officers

seized cash from those present, including from suspected drug

dealer Edwin Scott. The officers never reported the seizure.

Count Five charged Baird with conspiracy to violate the civil

rights of another while acting under the color of state law. See

. During this incident, Baird and a codefendant

illegally detained Arthur Colbert, threatened him, physically

assaulted him, and then conducted an illegal search of his

apartment. Count Six charged Baird with obstruction of justice.

See

. This count is based on Baird's attempt to

mislead investigators into believing that a codefendant was not

involved in the 5 Squad corruption.

The terms of the plea agreement made explicit Baird’s

sentencing exposure. A maximum prison term of 20 years

accompanied Count Two; a maximum of 10 years accompanied Count

Five; and a maximum of 5 years accompanied Count Six. In all,

according to the plea agreement itself, "the total maximum

sentence which could be imposed is a term of imprisonment of 35

years . . . ." Moreover, the plea agreement specifically noted

that "[n]o one has promised or guaranteed to the defendant what

sentence the Court will impose." The government did, however,

5 agree that it would move to allow the sentencing court to depart

from the Sentencing Guidelines pursuant to § 5K1.1 if, in its

sole discretion, the government determined that Baird fully and

truthfully cooperated with the prosecution in its investigation

into the activities of the 5 Squad. Because of Baird’s extensive

cooperation, the government made such a motion.

The computation of Baird's sentence under the

Sentencing Guidelines is complicated because it involves the

grouping of counts. We need not concern ourselves with the

intricacies of this process, however, except to note those

specific offense characteristics and adjustments the district

court took into account at sentencing. They include the

following: a five-level increase under § 2B3.1(b)(2)(C) for the

use of a handgun; a four-level increase under § 2H1.1(b)(1)

because Baird was a public official at the time of the offense; a

two-level increase under § 3A1.3 for restraining the victim of an

offense; a two-level increase under § 3B1.1(c) for a supervisory

role in the offense; a two-level increase under § 3B1.3 for abuse

of a position of trust; a two-level increase under § 3C1.1 for

obstruction of justice; and a three-level decrease under §

3E1.1(a), (b) for acceptance of responsibility. The calculation

led to a total offense level of 29. Because Baird had no prior

criminal history, his criminal history category was I. Under the

relevant Sentencing Guidelines, an offense level of 29 with a

criminal history category of I yields an adjusted guideline range

6 of 87 to 108 months imprisonment.

In fashioning its sentence, the district court focused

heavily on the significant disruption of governmental functions

caused by Baird's activities, finding it so great as to justify a

departure under § 5K2.7, which provides: If the defendant’s conduct resulted in a significant disruption of a governmental function, the court may increase the sentence above the authorized guideline range to reflect the nature and extent of the disruption and the importance of the governmental function affected.

1995 U.S.S.G. § 5K2.7.

For example, the court observed that "every time a

search is undertaken in violation of the Constitution, that is a

significant disruption of Governmental function." As further

evidence of the disruption, the court cited the many convictions

that have been set aside because they were based on illegally

obtained evidence, and the civil litigation that has resulted

from these wrongful prosecutions. It concluded that the drafters

of the Sentencing Guidelines simply did not foresee police

corruption of the type and colossal extent involved here.

Therefore, it departed upward and sentenced Baird to 156 months

for Count Two, 120 months for Count Five, and 60 months for Count

Six. The sentences were to run concurrently, so that Baird's

total sentence was 156 months, or 13 years.

It will be instructive to recite the relevant portions

of the district court’s reasoning: I have considered the guidelines. I do find that there has been a significant disruption of a Governmental function here. I find there to have been many significant

7 disruptions of many Governmental functions. And in my view, every time a search is undertaken in violation of the Constitution, that is a significant disruption of Governmental function.

When somebody chooses to squish the Bill of Rights into the mud, that is a significant disruption of Governmental function, whatever one thinks about the exclusionary rule, and sage people have debated all sides of that issue, our Supreme Court has spoken on that. And when one does that and does that repeatedly, each and every such event constitutes a significant disruption of a Governmental function, whether somebody later tattle- tales on it or not. That it was just a little tree falling in the wilderness, a little unconstitutional search that some police officer decided not to talk about, that disruption occurred then and there.

That because of this defendant's prodigious memory, his willingness to come forth, many of these illicit searches have now been overturned, and many, perhaps some substantively in the Government's sentencing memorandum, suggests all of them substantively ultimately justifiable searches from the standpoint of whether the drugs actually were there, in most of these cases, whether they pan out with continuing convictions or whether those convictions are destroyed, and consequent civil suits, et cetera, that is another aspect of the disruption of governmental function, sort of the second stage of it.

First, is the Constitutional violation and recognition of it, then the disruption of the numerous convictions, then the lawsuits for people whose Constitutional rights were violated.

Governmental functions in this town have been disrupted immeasurably. And I am constrained to conclude that the guidelines simply, as all-encompassing the seemingly all-foreseeing scriveners of those guidelines may have been, didn't fully encompass and embrace the breadth of the criminality before us today.

And I am thus, upon this reasoning, of the view that an upward departure is appropriate. Again perhaps toying with semantics here, I am perhaps in trying to honestly convey to you my thinking on the subject, there is implicit in what I am going to impose something of a downward departure.

I would be hitting you harder, frankly, were it not for the

8 cooperation. I recognize the irony in his zeal to cooperate and cheapen his sentence of being hit hard, but actually the jail, the prisons of the Commonwealth and the United States of America from the Atlantic to the Pacific, are full of people who have been incarcerated for a lot longer than this man is going to go, simply because they got talkative in the Roundhouse [the Philadelphia police administration building] or some similar edifice in some other municipality.

But I think under the circumstances of this case an upward departure is not only appropriate but essential. Upon release from imprisonment, the defendant shall be placed on supervised release for a term of three years.

The sentence actually given to Baird far exceeded his

sentencing range as calculated under the Guidelines. In effect,

the upward departure was either a four-level increase to an

offense level of 33, criminal history category of I, and a

sentencing range of 135 to 168 months; or a five-level increase

to an offense level of 34, criminal history category of I, and a

sentencing range of 151 to 188 months. As is evident from the

passages quoted above, the precise anatomy of the actual

departure is unclear because the district court was general

rather than specific in explaining the departure justification.

Baird timely appealed from the judgment. The district

court properly exercised jurisdiction over the matter under

; we exercise appellate jurisdiction over the final

judgment of the district court under

and

.

II. MAY CONDUCT UNDERLYING DISMISSED COUNTS BE CONSIDERED?

A. Introduction

Baird's first contention on appeal is that the district

9 court improperly departed upward from the Guideline range based

on conduct underlying counts to which Baird did not plead guilty

and which were dismissed by reason of the plea agreement.2 As we

have noted, the point is still somewhat controversial; four

circuits allow consideration of dismissed counts, and two others

do not. See infra, part II, section B. Our analysis of this

contention, therefore, requires close scrutiny of a number of

provisions in the Sentencing Guidelines. We undertake such

scrutiny in light of Koon v. United States, U.S. ,

(1996), which teaches that appellate review of a

district court's decision to depart from the Guidelines is

essentially subject to an abuse of discretion standard. See

. Any legal error in applying the Guidelines would

constitute such an abuse. See

.

B. Analysis

Whether a sentencing court can consider conduct

underlying dismissed counts is at bottom a legal question about

which there continues to be not only disagreement but also a

2. Although the district court did not particularize the reasons for departing from the applicable sentencing range, the parties do not dispute that the court relied on conduct not underlying the charged offenses, some of which was conduct underlying counts dismissed as per the plea agreement. A review of the sentencing hearing transcript confirms that this is so. Baird has also argued that the district court did not sufficiently consider the § 5K1.1 motion. We disagree. Although the court did not explicitly state that it was denying the motion, nor did it state the reasons for doing so, it is clear from the record that the court carefully considered Baird's cooperation within the § 5K1.1 frame of reference.

10 certain amount of confusion. As we proceed, we bear in mind that

not only is each guideline legally binding on the courts, see

Mistretta v. United States,

(1989), but so too

are the accompanying policy statements, see Williams v. United

States,

(1992), and commentary, see Stinson

v. United States, U.S. ,

(1993),

so long as neither the policy statements nor the commentary is

inconsistent with any guideline.

The Guidelines afford sentencing courts considerable

leeway as to the information they may consider when deciding

whether to depart from the Guideline range. Section 1B1.4

specifically states that in determining whether a departure is

warranted, "the court may consider, without limitation, any

information concerning the background, character and conduct of

the defendant, unless otherwise prohibited by law." 1994

U.S.S.G. § 1B1.4. Moreover, with respect to conduct underlying

dismissed counts, the commentary to § 1B1.4, when read in

conjunction with the commentary to § 1B1.3, indicates that

considering such conduct is appropriate. The commentary to §

1B1.4 declares that "information that does not enter into the

determination of the applicable guideline sentencing range may be

considered in determining whether and to what extent to depart

from the guidelines." Id. § 1B1.4, comment., backg. And, the

commentary to § 1B1.3 states that "[c]onduct that is not formally

charged or is not an element of the offense of conviction may

11 enter into the determination of the applicable guideline

sentencing range." Id. § 1B1.3, comment., backg.3

It must be, therefore, that conduct not formally

charged or not an element of the offense can be considered at

sentencing; if such information can be considered in determining

the applicable guideline range under § 1B1.3, then such

information can be considered in determining whether to depart

from that range under § 1B1.4. Thus, conduct underlying

dismissed counts -- which is conduct that is neither formally

charged nor an element of the offense -- may be considered at

sentencing.4

3. Section 1B1.3 does, of course, place some limits on the information considered when determining the applicable sentencing range. Under § 1B1.3(a)(1), the relevant conduct must have "occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense." 1994 U.S.S.G. § 1B1.3(a)(1). In this case, the conduct underlying the dismissed counts might or might not fit this definition. Under § 1B1.3(2), with respect to offenses for which grouping under § 3D1.2(d) is appropriate, conduct that is "part of the same course of conduct or common scheme or plan as the offense of conviction" can be considered. Id. § 1B1.3(2). Certainly, the conduct underlying the dismissed counts in this case is part of the same course of conduct or common scheme or plan as the offense of conviction. See id. § 1B1.3, comment., application note 9 (defining "common scheme or plan" and "same course of conduct"). But, only some of the dismissed counts would be grouped under § 3D1.2(d); the other counts include multiple counts of offenses that are specifically excluded from the grouping rules. However, as is noted in the text, the information considered under § 1B1.4 is broader than that considered under § 1B1.3. Therefore, that the conduct underlying the counts dismissed in this case may not be considered under § 1B1.3 does not preclude its consideration under § 1B1.4.

4. It should be noted that we are considering only offense level departures and not criminal history category departures. For sake of completeness, we note that it seems that, under § 4A1.3,

12 This conclusion is supported by the weight of the case

law. The leading case is United States v. Kim,

(2d

Cir. 1990) (allowing the consideration of conduct underlying

dismissed counts). In Kim, the Second Circuit identified four

ways in which the Guidelines addressed misconduct not resulting

in conviction. See

. First, the Guidelines take

cognizance of acts that typically accompany or occur in the

course of an offense. These specific offense characteristics

determine the severity of the offense. Second, the Guidelines

create rules concerning misconduct to which the parties stipulate

in connection with the entry of a plea. Third, calculating the

criminal history category under the Guidelines requires an

(..continued) conduct underlying dismissed counts can also be considered. Section 4A1.3 states that a court may depart from the applicable guideline range if reliable information leads it to believe that a defendant's criminal history category under- or over-represents the seriousness of the defendant's past criminal history. Such information includes, inter alia, "prior similar adult criminal conduct not resulting in a criminal conviction." 1994 U.S.S.G. § 4A1.3(e). We do not believe, however, that, given the circumstances of the present case, a criminal history category departure would have been warranted. By use of the term "prior," the Sentencing Guidelines seems to imply that a criminal history category departure under § 4A1.3(e) is appropriate only when the conduct in question is unrelated to, different from, or not part of the offense conduct. See United States v. Kim,

(2d Cir. 1990). As the Supreme Court has stated, "the difference between 'criminal history' and 'relevant conduct' is more temporal than qualitative, with the former referring simply to a defendant's past criminal conduct . . . and the latter covering activity arising out of the same course of criminal conduct as the instant offense." Witte v. United States, U.S. ,

(1995) (citations omitted). Here, the conduct underlying the dismissed counts are part of the same criminal activity as the offense conduct.

13 analysis of misconduct not resulting in a conviction. Finally,

the Guidelines envision departures based on misconduct not

resulting in conviction. Against this background, the court in

Kim concluded that "with respect to acts of misconduct not

resulting in conviction, the [Sentencing] Commission intended to

preclude departures for acts bearing no relationship to the

offense of conviction, but to permit departures for acts that

relate in some way to the offense of conviction, even though not

technically covered by the definition of relevant conduct." Id.

at 684; accord United States v. Barber,

(4th Cir. 1996); United States v. Big Medicine,

, 997-

98 (10th Cir. 1995); United States v. Ashburn,

, 807-

08 (5th Cir. 1994) (en banc), cert. denied,

(1995); United States v. Zamarripa,

(10th

Cir. 1990).

In a related vein, the Supreme Court recently held that

a sentencing court is permitted to consider conduct of which a

jury acquitted a defendant. See United States v. Watts, U.S.

,

(1997).5 In so doing, the Court engaged in a

close analysis of statutory authority, the Sentencing Guidelines

(particularly § 1B1.3 and § 1B1.4), its own precedent, and pre-

Guidelines sentencing practices. See id. at 635-36. With

sweeping language, the Court made plain that a sentencing court

5. In United States v. Ryan,

(3d Cir. 1989), we had reached the same conclusion.

14 is entitled to examine a broad range of factors that may relate

to the defendant's conduct, including, but apparently not limited

to, the defendant's life, characteristics, and past criminal

behavior, even if such behavior did not result in criminal

convictions. See

. According to the Court, the

Guidelines kept in place a sentencing system in which there was

no "basis for the courts to invent a blanket prohibition against

considering certain types of evidence at sentencing." Id.6 Watts strongly suggests that a sentencing court may

consider conduct underlying dismissed counts. If a sentencing

court can consider conduct that a jury, after trial, believed to

be unproven beyond a reasonable doubt, it would surely seem that

a sentencing court can consider conduct underlying a count that,

by plea agreement, has been dismissed without having been tested

in an adversarial process. We note that in Watts the sentencing

courts considered acquitted conduct when calculating the

applicable guideline range. Although neither of the underlying

cases in Watts was a departure case, we find nothing in Watts

that implies that the Supreme Court would treat a departure case 6. Two of the Justices who wrote in Watts disagree over whether, after Watts, the Sentencing Commission has the power to limit the ability of sentencing courts to consider acquitted conduct. Justice Scalia believes only Congress may do so, see Watts,

(Scalia, J., concurring); Justice Breyer contends that the Commission may do so on its own, see

(Breyer, J., concurring). We agree with Justice Breyer, and for the reasons set forth by Judge Wald in her eloquent concurring opinion in United States v. Baylor,

(D.C. Cir. 1996), urge the Sentencing Commission to prohibit sentencing courts from considering acquitted conduct during sentencing.

15 any differently. In fact, the Court relies heavily on § 1B1.4,

which governs the information applicable to departures, in

reaching its conclusion.

The foregoing analysis does not lead ineluctably to the

conclusion that any conduct underlying a dismissed count may be

considered at sentencing. The conduct underlying the dismissed

counts must be related in some way to the offense conduct. To be

related conduct, the conduct need not, however, fit the

definition of relevant conduct under § 1B1.3. Without attempting

to define with precision the meaning of “related,” we again

follow United States v.

and hold that the acts in

question must exhibit commonalities of factors sufficient to

allow for a reasonable grouping of the separate, individual acts

into a larger, descriptive whole. It is not enough, however,

that the acts stand in close temporal relation to one another.

Rather, the similarities of the acts must arise from the

character or type of the acts.

The Second Circuit's logic in Kim in this respect is

compelling. It began by noting that specific offense

characteristics for a given guideline represent typical

occurrences during the commission of the specific crime covered by the guideline. See

. It went on to note that the

relevant conduct guideline, § 1B1.3, is limited to conduct that

is somehow related to the offense of conviction. See id. at 682-

83. Then, the court noted that in determining the criminal

16 history category a court is directed to similar, prior conduct

under § 4A1.3(e). See id. at 683. Finally, the court looked at

the language the Guidelines employ with respect to departures and

pointed out that departures should only be based on conduct

related to the offense of conviction. See id.

The court concluded that these provisions, when taken

together, make clear that a sentencing court may only consider

dismissed conduct if it is related to the charged conduct. In

the case at bar, it is clear that the conduct underlying the

dismissed counts was sufficiently related to the charged conduct.

All of the acts, whether charged or not, involved essentially

the same type of illegal searches and seizures and essentially

the same perpetrators. The only differences appear to be the

identity of the particular victims.7

7. We must also bear in mind the standard of proof that must be met before a judge may consider disputed information at sentencing. As we held in United States v. Kikumura,

(3d Cir. 1990), facts deemed relevant to a departure from the Guidelines sentencing range generally need be proved only by a preponderance of the evidence. See

; cf. 1994 U.S.S.G. § 6A1.3, comment. ("The Commission believes that use of a preponderance of the evidence standard is appropriate to meet due process requirements and policy concerns in resolving disputes regarding application of the guidelines to the facts of a case."). In rare circumstances, however, the sentencing hearing may become the "tail which wags the dog of the substantive offense." Kikumura,

(quoting McMillan v. Pennsylvania,

(1986)). In such cases, the fact finding underlying the departure must be established by clear and convincing evidence. See

The case before us does not present that rare circumstance. The departure here was at most five levels. A five-level departure is not extreme enough to require proof by the clear and convincing standard. See id. at 1100 (reasoning that the facts underlying a six-level departure need be proven only by a preponderance and that a ten-level increase is

17 The Ninth Circuit in United States v. Castro-Cervantes,

(9th Cir. 1990) reached a conclusion different from

the Second Circuit. It held that a court could not consider the

conduct underlying dismissed counts -- whether related to the

offense conduct or not -- when making a departure determination.

See

. (A more complete discussion of Castro-

Cervantes is more appropriately taken up later. See infra part

II, section D.); see also United States v. Harris,

(8th Cir. 1995) (holding that consideration of conduct

underlying dismissed counts to support an upward departure is

inappropriate). Notwithstanding its Castro-Cervantes holding,

the Ninth Circuit also made clear, in United States v. Fine,

(9th Cir. 1992), that the rule in Castro-Cervantes only

applies to departures based on conduct underlying counts

dismissed pursuant to a plea agreement; Castro-Cervantes did not

limit consideration of such conduct as relevant conduct in

determining the applicable sentencing range. See

.

C. Does United States v. Thomas Undermine Our Conclusion?

Before proceeding further, we must consider whether our

decision in United States v. Thomas,

(3d Cir. 1992), which arguably calls into question our conclusion that

consideration at sentencing of conduct underlying dismissed (..continued) "probably" subject to the same standard). Moreover, the conduct underlying the dismissed counts on which the sentencing court relied was proven by more than a preponderance of the evidence. Baird himself supplied the factual basis for the counts when he began to cooperate in the investigation.

18 counts is permissible, undermines our conclusions. In Thomas, in

the course of obtaining firearms from a gun shop, the defendant

falsely stated on four Bureau of Alcohol, Tobacco and Firearms

forms that he had never been convicted of a crime punishable by a

prison term in excess of one year. In fact, the defendant had a

lengthy criminal record. As part of a plea agreement, the

defendant agreed to plead guilty to four counts of making false

statements in connection with the purchase of a firearm. In

exchange, the government agreed not to charge him with possession

of a firearm by a convicted felon, a crime that carried with it a

mandatory minimum sentence of 15 years. At sentencing, the

district court departed from the applicable Sentencing Guideline

range of 24-30 months. It justified the departure by its finding

that the defendant's criminal history category, the highest

category under the Guidelines, under-represented the defendant's

criminal history because it did not take into account juvenile

convictions, the likelihood of recidivism, and parole

revocations.

As an alternative argument supporting the decision to

depart, the government argued on appeal that, even assuming that

the factors on which the district court relied to depart from the

criminal history category were improper, the court could have

departed based on the conduct not charged. The Thomas panel

disagreed; it wrote that a sentencing court could not depart from

the Guidelines to account for conduct underlying a forgone

19 charge. See

("It would be a dangerous proposition to

allow district courts to base upward departures on crimes that

were not actually charged.").

Although Thomas seems to suggest that consideration at

sentencing of conduct underlying dismissed counts is improper, we

believe that any such conclusion is incorrect. We have explained

how our conclusion flows from Watts, a Supreme Court decision.

To the extent that Thomas is inconsistent with Watts, Thomas will

of course be deemed without effect.8 Even assuming that Watts is

not controlling because Watts and Thomas arose in different

factual contexts -- the issue in Watts was the consideration of

acquitted conduct and that in Thomas was of dismissed conduct --

Thomas is distinguishable from the present case. The particular

facts of Thomas and our irritation with the government’s position

relative to those facts largely determined the result.

Thomas presented an unusual plea agreement. The

8. In another recent opinion, we stated that "there is no reason why facts relating to a count on which a defendant is acquitted or which is dismissed may not be germane with respect to a count on which he is convicted." United States v. Goggins, No. 96- 3154, slip op. at 6 (3d Cir. Oct. 30, 1996) (citing Ryan). That language implies that Ryan, see supra note 5, (and, by implication, Watts) and not Thomas controls the consideration of conduct underlying dismissed counts. We are reluctant to rely on Goggins for that proposition, however, because the count at issue in Goggins was dismissed by operation of law and not by virtue of a plea agreement. See id. at 3. Dismissal by operation of law and dismissal by virtue of a plea agreement implicate different policy concerns, counseling against the application of Goggins in this context. At all events, as we note in the text, because we believe that consideration of conduct underlying the dismissed counts in this case is appropriate under Watts (and even Thomas), we need not rely on Goggins.

20 government "expressly declined to prosecute" the defendant for

illegal possession of a firearm. See Thomas,

n.1 (Greenberg, J., concurring). To prosecute would have

triggered the provisions of the armed career criminal act. See

. The armed career criminal act operates much like an

"on/off switch" in that it applies automatically if its

prerequisites are met. See

. Moreover, once it

applies, the armed career criminal act imposes a mandatory

minimum sentence; there is no incremental increase in the

associated penalties. See

By arguing for consideration of

the conduct underlying the forgone charge, the government in

effect reneged on its agreement, and sought to alter the armed

career criminal act and impose on it a sliding scale it does not

have, ie., change the fundamental nature of the act so that it

operated like a dimmer switch. The government did so by arguing

that an upward departure -- to a sentence less harsh than that

mandated by the armed career criminal act -- was warranted

because it had not sought application of the armed career

criminal act. The government wanted the armed career criminal

act to play a role in sentencing, but not too much of a role.

The court in Thomas plainly disapproved of this attempt.9 9. The majority in Thomas commented that “[f]airness dictates that the government not be allowed to bring the firearm possession crime through the ‘back door’ in the sentencing phase, when it had previously chosen not to bring it through the ‘front door’ in the charging phase.” Thomas,

. The concurrence echoed these sentiments when it said that “[t]he real problem in this case is that the prosecutor has declined to enforce a law which represents an important policy determination

21 Thomas, as we read it, would not foreclose all

consideration of conduct underlying dismissed counts. Instead,

Thomas seems to be directed at the particular circumstances

presented by that case. See

at 1124 n.1 (Greenberg, J.,

concurring) ("I do not understand the opinion to preclude in all

circumstances the possibility of a departure predicated on

conduct which could have been the basis for additional charges

but was not. Here there is a special situation . . . .").

Because the circumstances of the present case differ

substantially from those of Thomas, Thomas should not control our

inquiry.10 .

D. Import of the Policy Statement Concerning Plea Agreements

Baird contends alternatively that the policy statement (..continued) by Congress.”

(Greenberg, J., concurring).

10. The government contends that a second of our cases, United States v. Johnson,

(3d Cir. 1991), would assist in our analysis. In Johnson, the defendant was indicted for the armed robbery of three individuals. The indictment charged the defendant with three counts of assault, one count for each of the individual victims. As part of the plea agreement, the government dropped all but one of the assault charges, but the district court departed upward from the applicable sentencing range because the assault involved three victims. The government submits that the case thus supports the proposition that we will allow a sentencing court to depart based on conduct underlying dismissed counts. We agree with Baird, however, that Johnson offers little guidance. The defendant in Johnson apparently did not make the argument Baird makes here. Rather, he seems to have conceded that the sentencing court could have considered the assaults underlying the counts the government dismissed. See

("[The defendant] argues that since he pled guilty to the aggravated assault of [one victim], there were only two additional victims, and thus it was unreasonable for the court to have departed more than two levels."). The panel in Johnson, therefore, did not address the question before us.

22 outlining the standards for accepting a plea agreement prohibits,

as a matter of law, consideration of conduct underlying a

dismissed charge. The relevant portion of the policy statement

follows: In the case of a plea agreement that includes the dismissal of any charges or an agreement not to pursue potential charges [Rule 11(e)(1)(A)], the court may accept the agreement if the court determines, for reasons stated on the record, that the remaining charges adequately reflect the seriousness of the actual offense behavior and that accepting the agreement will not undermine the statutory purposes of sentencing or the sentencing guidelines.

Provided, that a plea agreement that includes the dismissal of a charge or a plea agreement not to pursue a potential charge shall not preclude the conduct underlying such charge from being considered under the provisions of § 1B1.3 (Relevant Conduct) in connection with the count(s) of which the defendant is convicted.

1994 U.S.S.G. § 6B1.2(a).

According to Baird, the first paragraph of this subpart

means that, if the court believed that the counts not dismissed

by virtue of the plea agreement did not satisfactorily account

for the seriousness of the actual offense, then what the court

should have done is to reject the plea agreement. In other

words, Baird asserts, conduct underlying dismissed counts

provides grounds for rejecting a plea agreement but not for

departing from the applicable sentencing range.

Baird draws support for this argument from Castro- Cervantes. The Ninth Circuit in Castro-Cervantes reasoned that

if a plea agreement does not reflect the seriousness of the

offense, the court should reject the agreement at the outset; at

23 sentencing, it is too late to seek to address shortcomings in the

plea agreement. Allowing a court to depart from the sentencing

range based on conduct underlying dismissed counts would

"violate[] the spirit if not the letter of the bargain"

represented by the plea agreement. Castro-Cervantes,

. The Ninth Circuit expanded on the policy justifications

driving Castro-Cervantes by noting that "allow[ing] judges to

depart from the Guidelines on the basis of counts that have been

dropped pursuant to plea agreements would severely undermine the

incentive of defendants to enter into plea agreements." United

States v. Faulkner,

(9th Cir. 1991).11

We disagree. This argument begs the ultimate question.

Whether a court accepts a plea agreement is dependent, to some

extent, on the information it can consider at sentencing. If the

court is aware that it cannot consider conduct underlying

dismissed counts at sentencing, then it may be more reluctant to

accept a plea agreement. The opposite is also true. If the

court is aware that it may consider conduct underlying dismissed

counts at sentencing, then it may more readily accept a plea

11. Faulkner also discussed the potential conflict between Castro-Cervantes and United States v. Loveday,

(9th Cir. 1991). In Loveday, the court followed the reasoning in Kim and held that conduct underlying dismissed counts could be considered when determining whether to depart. See

. The court in Faulkner distinguished Loveday by arguing that the restriction imposed by § 6B1.2(a) -- that of requiring a court to reject a plea agreement that did not reflect the seriousness of the offense -- was not raised in Loveday. See Faulkner,

n.3.

24 agreement. At all events, we do not see Baird’s argument from §

6B1.2(a) as undercutting the conclusion we have already reached

regarding the use of dismissed conduct. The language of the

policy statement is insufficiently specific to contradict the

clearer guidance provided by other sections of the Guidelines and

the Supreme Court, discussed supra.

Baird also argues that the second paragraph of this

policy statement implies that conduct underlying dismissed counts

may only be used to determine the applicable sentencing range

under § 1B1.3, but may not be used to determine whether to depart

from that range. Otherwise, the argument continues, the first

paragraph of this subpart would be mere surplusage; no court

would hesitate to accept a plea agreement that includes dismissed

counts if that court could always consider the conduct underlying

those dismissed counts.

We disagree. As noted above, § 1B1.3, § 1B1.4, and the

commentary thereto make clear that the information appropriately

considered in a decision to depart is broader than that

considered in determining the applicable guideline range. If §

6B1.2(a) does not preclude a court from examining conduct

underlying dismissed counts in determining the applicable

sentencing range (in fact, the proviso contained in the last

paragraph of § 6B1.2(a) seems to encourage it), then we see no

reason why it should preclude the court from examining the same

25 information when deciding whether to depart.12

Moreover, even if a court actually considers conduct

underlying a dismissed count, it does not automatically ensure

that the remaining charges will reflect the seriousness of the

actual offense conduct. The statutory maximum sentence for the

remaining charges may be relatively low; in such a case, it might

be of little significance that a court could consider conduct

underlying dismissed counts because that court would be unable to

impose a sentence in excess of the statutory maximum. Under our

12. There is a potential argument that § 6B1.2(a), by use of the language "in connection with the count(s) of which the defendant is convicted," places some limit on the type of information that can be considered in this regard. 1994 U.S.S.G. § 6B1.2(a) (emphasis added). Such language might limit the information considered to that which is somehow related -- substantively and not merely temporally -- to the offense of conviction. As we discussed in the text supra, part II, section A, we agree, but reach the same conclusion employing slightly different reasoning. The second paragraph of § 6B1.2(a) was not added until 1992, after many of the offenses charged in the indictment had occurred. Thus, there is also a potential argument that amendments to § 6B1.2(a) render the 1994 Sentencing Guidelines inapplicable. As a general rule, the applicable Guidelines are those in effect at the time of sentencing. See United States v. Kopp,

(3d Cir. 1991). To avoid Ex Post Facto Clause complications, we will apply the Guidelines in effect at the time of the offense if doing otherwise would result in a harsher sentence. See

However, as suggested in the text, the second paragraph in § 6B1.2(a) merely reinforces the conclusion reached -- from examination of § 1B1.3, § 1B1.4, and the commentary thereto -- that conduct underlying dismissed counts can be used to justify an upward departure. So as to avoid the potential inapplicability of the section, we do not rely on § 6B1.2(a) as independent support for our conclusion. For defendants whose offenses occurred after the amendment to § 6B1.2(a), it may very well be that the section provides such independent support. Both § 1B1.3 and § 1B1.4 have been amended as well, but, as far as we can tell, the amendments do not bear on our inquiry here.

26 interpretation of the Guidelines, then, a court might reject a

plea agreement because it believes that the statutory maximum

sentence for the remaining counts is too short to account both

for the charged conduct and for the dismissed conduct. Contrary

to Baird’s submission, then, the first paragraph of § 6B1.2(a) is

not mere surplusage.

E. Policy Justifications

Our conclusion that conduct underlying dismissed counts

may be considered when determining whether to depart from the

applicable Sentencing Guidelines range comports with the policies

underlying the Guidelines themselves. The Guidelines are, at

bottom, a modified real offense system. See 1994 U.S.S.G. chap.

1, pt. A, intro. comment. 4(a). More specifically, they are a

mix of a charge offense system and a pure real offense system in

that it bases a sentence on both the formal offense of conviction

and on the actual conduct of the defendant. See Stephen Breyer,

The Federal Sentencing Guidelines and the Key Compromises Upon

Which They Rest,

, 8-12 (1988). Therefore,

it is clear that the Guidelines envisioned that sentencing courts

would consider at least some conduct for which a defendant was

not actually charged.

We are unconvinced by Baird’s argument that use of

conduct underlying dismissed counts will deny defendants the

benefit of the plea agreement bargain, nor, as we explained, see supra part II, section D, do we find persuasive the contention

27 that without that benefit there will be no incentive for

defendants to plea bargain. In the usual case, the plea

agreement makes clear that the sentencing court is not bound by

the agreement. Within statutory bounds, the sentencing court has

great discretion. If a defendant is sentenced to a term of

imprisonment within the maximum set out in the plea agreement, it

is difficult to see the grounds on which a defendant can rest a

complaint; the defendant got what he bargained for.13

At all events, the incentive to plea bargain remains.

The defendant can limit the sentencing court's discretion by

bargaining to plead guilty only to charges with lower statutory

maxima. Of course, the court may reject that plea agreement.

And, if the defendant pled pursuant to Federal Rule of Criminal

Procedure 11(e)(1)(A) -- which allows the government to dismiss

charges -- or 11(e)(1)(C) -- which allows the government and

defendant to agree on a specific sentence -- he can withdraw his

plea.14 Moreover, the Sentencing Guidelines allow for an

13. In this case, Baird's sentence -- 13 years -- fell well within the statutory maximum -- 35 years -- set out in the plea agreement.

14. Baird made no request to withdraw his plea. Therefore, we would not be inclined to allow him to do so, even under the theory that by departing upward from the Guidelines the sentencing court effectively rejected the plea agreement. Moreover, the plea agreement in this case made clear that Baird could not withdraw his plea on the grounds that the court declined to follow any recommendation, motion, or stipulation by the government. It appears, then, that the plea was subject to Federal Rule of Criminal Procedure 11(e)(1)(B), which, under Rule 11(e)(2), may not be withdrawn if rejected by the court.

28 adjustment of offense level for the acceptance of responsibility,

see 1994 U.S.S.G. § 3E1.1, and courts routinely make this

adjustment for defendants who plead guilty.

F. Summary

We conclude that a sentencing court, in its

determination whether to depart from the sentencing range made

applicable by the Sentencing Guidelines, may consider conduct

underlying counts dismissed pursuant to a plea agreement,

provided that such conduct is related to the conduct forming the

basis of the remaining counts and that such conduct is proved by

at least a preponderance of the evidence. In this case, it was

appropriate for the district court to consider conduct underlying

the counts against Baird that were dismissed. That conduct was

related to the charged conduct and it was proved by at least a

preponderance of the evidence.

III. DID THE DISTRICT COURT ABUSE ITS DISCRETION IN DECIDING TO

DEPART?

We now must determine whether, given the information

before it, the district court abused its discretion by departing

from the applicable guideline range. Unlike our discussion

heretofore, the legal standard is relatively clear, and our focus

will be on the particular factual circumstances presented by this

case.

A. Introduction

Section 5K2.0, Grounds for Departure, provides a

29 roadmap for a decision to depart from the applicable Guideline

range. In the usual case, a sentencing court must impose a

sentence within the Guideline range. See

(b).

For the most part, a court can "treat each guideline as carving

out a 'heartland,' a set of typical cases embodying the conduct

that each guideline describes." See 1994 U.S.S.G. ch. 1, pt. A,

intro. comment. 4(b). However, the Sentencing Commission

recognizes that “it is difficult to prescribe a single set of

guidelines that encompasses the vast range of human conduct

potentially relevant to a sentencing decision.”

Therefore,

a court may depart from the range if it “finds that there exists

an aggravating or mitigating circumstance of a kind, or to a

degree, not adequately taken into consideration . . . in

formulating the guidelines.”

(b); see 1995

U.S.S.G. § 5K2.0. It is only in the unusual case, one outside

the “heartland,” in which a departure is authorized. See Koon,

. Except for a limited number of prohibited

factors, the Guidelines do not “limit the kinds of factors,

whether or not mentioned anywhere else in the guidelines, that

could constitute grounds for departure in an unusual case.” 1995

U.S.S.G. ch. 1, pt. A, intro. comment. 4(b).15

“Sentencing courts are not left adrift, however.” 15. The prohibited factors are race, sex, national origin, creed, religion, and socio-economic status (§ 5H1.10); lack of guidance as a youth (§ 5H1.12); drug or alcohol dependence (§ 5H1.4); and economic duress (§ 5K2.12). See 1995 U.S.S.G. ch. 1, pt. A, intro. comment. 4(b).

30 Koon,

. The Guidelines list factors that are

encouraged as bases for departure and those that are discouraged.

Section 5K2.0 introduces the subject. As § 5K2.0 explains, the

Commission “seeks to aid the [sentencing] court by identifying

some of the factors that [it] has not been able to take into

account fully in formulating the guidelines.” 1995 U.S.S.G. §

5K2.0. Those factors are included in §§ 5K2.1-5K2.18, and cover

issues such as the death or injury of a victim, the harm to

property or government interests, the purpose or cause of the

offense, the particular conduct of the defendant, and the like.

In Chapter 5, Part H, the Guidelines list a number of discouraged

factors. These are “factors [that] are not ordinarily relevant

to the determination of whether a sentence should be outside the

applicable guideline range.” 1995 U.S.S.G. ch. 5, pt. H, intro.

comment. They include, but are not limited to, a defendant’s age

(§ 5H1.1), education or vocational skills (§ 5H1.2), or

employment history (§ 5H1.5).

In Koon, the Supreme Court explained how a sentencing

court is to factor prohibited, encouraged, and discouraged

factors into the sentencing decision. If the unusual or special

factors presented by a case are prohibited factors, a court may

not depart on that basis alone. See Koon,

. If

the unusual or special factors are encouraged factors, a court is

merely authorized to depart. See

A departure employing

encouraged factors is commonly referred to as a “guided”

31 departure. If the unusual or special factors are discouraged, or

if they are encouraged factors that have been taken into account

by the relevant guideline, then a court may depart only if the

"factor[s are] present to an exceptional degree or in some other

way make[] the case different from the ordinary case where the

factor[s are] present."

Finally, a sentencing court may

depart even if the unusual or special factors have not been

mentioned in the Guidelines, but only in rare circumstances. See

Such a departure would be “unguided.”

B. Can the Disruption of Government Function Serve as a Basis

for Departure in this Case?

Disruption of governmental function is included among

the encouraged upward departure factors. See 1994 U.S.S.G. §

5K2.7. "If the defendant's conduct resulted in a significant

disruption of governmental function, the court may increase the

sentence above the authorized guideline range to reflect the

nature and extent of the disruption and the importance of the

governmental function affected." Id. Although an encouraged

factor, the disruption in this case was, at least in part,

arguably taken into account when determining the applicable

sentencing range. For example, as part of the calculation of his

total offense level, Baird received a two-level increase because,

as a police officer, he abused his position of trust. See id § 3B1.3. He also received a four-level increase because, again as

a police officer, he was a public official at the time of the

32 offenses. See id. § 2H1.1(b)(1). In other words, Baird’s

sentence reflected the fact that he was a rogue government

official, one who affected government operations by acting

outside of the law. Therefore, as stated in Koon, the sentencing

court could have departed in this case only if the disruption was

"present to an exceptional degree or in some other way [made] the

case different from the ordinary case where the [disruption] is

present."

We believe that it is clear that the sentencing court

did not abuse its discretion by implicitly concluding that the

disruption of governmental function caused by Baird's conduct is

"present to an exceptional degree." The full impact of Baird's

conduct is not yet known. However, based upon information

supplied by the City of Philadelphia and by Baird himself, we

know that the city has reopened innumerable criminal cases,

originating from the 39th District, to determine whether it

obtained convictions based on illegally obtained evidence.

The city has already set aside more than one hundred

and fifty such convictions, leading to the release of innocent

persons from prison. As a result of these wrongful convictions,

many individuals have instituted civil lawsuits seeking damages

from the city. The city stands to be liable for enormous sums of

money. In other words, the disruption Baird caused is not only

by no means ordinary, but also is, as far as we can tell, as

colossal as it is unprecedented. The city must invest

33 considerable time, vast energy, and enormous resources in making

right the wrongs Baird has caused. Therefore, the departure in

this case to reflect a disruption in government functions was

appropriate.

Baird submits that the disruption occurred as a result

of his truthful cooperation with the investigation into the 39th

District and not as a result of his unlawful conduct. Therefore,

the argument continues, he should not be subject to a departure

because § 5K2.7 only allows departures "[i]f the defendant's

conduct resulted in a significant disruption . . . ." Id. §

5K2.7 (emphasis added). In a sense, Baird is correct. Without

his cooperation, the full extent of the 39th District corruption

might never have come to light. We are not unsympathetic, but

there is a flaw in Baird's argument: his conduct in fact caused

the disruption. But for Baird's illegal activities, the city

would not have reopened criminal convictions originating in the

39th District and innocent people would have no cause to sue the

city.

In other words, if Baird had been an honest police

officer, the city would not need to invest considerable time,

energy, or resources in making anything right because nothing was

wrong. At all events, we have made clear that the literal

language of an encouraged departure factor is not controlling.

See Kikumura,

("[F]itting a case within the literal language of a § 5K2 provision is neither a necessary nor

34 a sufficient condition for making an offense-related

departure."). That the disruption in this case might have been

caused by Baird's cooperation as opposed to Baird's conduct is

therefore of little consequence. We hold that a departure in

this case for a significant disruption of government functions

was not an abuse of discretion.

IV. WAS THE EXTENT OF DEPARTURE APPROPRIATE?

Having concluded that a departure in his case was

appropriate, the final stage in our analysis is to determine

whether the extent of the departure was reasonable. Our review

of the sentencing court's decision in this regard is deferential.

See Kikumura,

; cf. Koon,

(holding that a decision whether to depart is reviewed for an

abuse of discretion). However, there are "objective standards to

guide the determination of reasonableness." Kikumura,

. Those objective standards can be found in the

Guidelines themselves, which provide analogies to which

sentencing courts must look when making their determinations.

See

.

In the present case, the district court failed to

undertake the analogic reasoning that Kikumura often requires. However, as in Kikumura, our examination of the record leads us

to conclude beyond any doubt that even if we were to remand the

district court would impose as high a sentence as possible up to

13 years. "If a reasonable analogy existed to support the

35 sentence imposed, remand would be a pointless exercise. We

therefore proceed to consider whether such analogy exists."

(footnote omitted). In so doing, we must bear in mind

that "[w]e are dealing here with analogies to the guidelines,

which are necessarily more open-textured than applications of the

guidelines."

(emphasis in original).

Our task, then, is to determine if a reasonable analogy

exists in the Guidelines that would justify a four- or five-level

upward departure based on the disruption of governmental

functions. We note the existence of a guideline for the conflict

of interest crimes. See 1994 U.S.S.G. § 2C1.3. Under § 2C1.3,

the base offense level for the criminal, financial and non-

financial conflict of interest by federal officials is 6. See

id. § 2C1.3(a). However, "[i]f the offense involved actual or

planned harm to the government," the Guidelines require an

enhancement of 4 levels. See id. § 2C1.3(b)(1). Section 2C1.3

implies, then, that the Guidelines consider harm to the

government worthy of a four-level increase. Since Baird’s

conduct in this case is infinitely worse than a mere conflict of

interest that results in harm to the government, a fortiori, the four-level departure in this case was reasonable.16

16. We recognized in Kikumura that “[t]here may be vehicles for making offense-related departures under Ch. 5, Pt. K of the guidelines (and for determining the reasonableness thereof) other than the kind of analogic reasoning outlined above.” Kikumura,

. We noted further “that there may be cases where the guidelines will not afford useful analogies.”

Because we have in this case a useful analogy in the Guidelines, we need not endeavor to search for some other standard against

36 The judgment of the district court will be affirmed.17

_______________________________

TO THE CLERK:

Please file the foregoing opinion.

BY THE COURT:

_________________________ Circuit Judge

(..continued) which we may measure the reasonableness of the departure.

17. Because we affirm the judgment, Baird’s contention that the case should be reassigned to a different district court judge on remand is moot.

37