Scribd Logo
Upload

Welcome to Scribd!

  • 77 views

    United States v. Sclamo, 1st Cir. (1993)

    Uploaded by

    Scribd Government Docs
    The US Court of Appeals for the First Circuit affirmed the district court's downward departure from sentencing guidelines in the case of Joseph Sclamo Jr, who pled guilty to drug possession charges. The district court departed based on evidence that Sclamo had an exceptional relationship with his partner's 12-year old son, who had been abused and needed ongoing support, and that removal of Sclamo would harm the son's welfare. The Court of Appeals found the family circumstances in this case were sufficiently extraordinary to warrant departure from the guidelines.

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd

    United States v. Sclamo, 1st Cir. (1993)

    Uploaded by

    Scribd Government Docs
    77 views13 pages
    The US Court of Appeals for the First Circuit affirmed the district court's downward departure from sentencing guidelines in the case of Joseph Sclamo Jr, who pled guilty to drug possession charges. The district court departed based on evidence that Sclamo had an exceptional relationship with his partner's 12-year old son, who had been abused and needed ongoing support, and that removal of Sclamo would harm the son's welfare. The Court of Appeals found the family circumstances in this case were sufficiently extraordinary to warrant departure from the guidelines.

    Original Description:

    Filed: 1993-07-07 Precedential Status: Precedential Docket: 93-1089

    Copyright

    © Public Domain

    Available Formats

    PDF or read online from Scribd

    Did you find this document useful?

    Is this content inappropriate?

    The US Court of Appeals for the First Circuit affirmed the district court's downward departure from sentencing guidelines in the case of Joseph Sclamo Jr, who pled guilty to drug possession charges. The district court departed based on evidence that Sclamo had an exceptional relationship with his partner's 12-year old son, who had been abused and needed ongoing support, and that removal of Sclamo would harm the son's welfare. The Court of Appeals found the family circumstances in this case were sufficiently extraordinary to warrant departure from the guidelines.

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
    Download as pdf
    77 views13 pages

    United States v. Sclamo, 1st Cir. (1993)

    Uploaded by

    Scribd Government Docs
    The US Court of Appeals for the First Circuit affirmed the district court's downward departure from sentencing guidelines in the case of Joseph Sclamo Jr, who pled guilty to drug possession charges. The district court departed based on evidence that Sclamo had an exceptional relationship with his partner's 12-year old son, who had been abused and needed ongoing support, and that removal of Sclamo would harm the son's welfare. The Court of Appeals found the family circumstances in this case were sufficiently extraordinary to warrant departure from the guidelines.

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
    Download as pdf
    You are on page 1of 13

    USCA1 Opinion

    UNITED STATES COURT OF APPEALS


    FOR THE FIRST CIRCUIT
    ____________________
    No. 93-1089
    UNITED STATES OF AMERICA,
    Appellant,
    v.
    JOSEPH SCLAMO, JR.,
    Defendant, Appellee.
    ____________________
    APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF MASSACHUSETTS
    [Hon. Robert E. Keeton, U.S. District Judge]
    ___________________
    ____________________
    Before
    Boudin, Circuit Judge,
    _____________
    Coffin, Senior Circuit Judge,
    ____________________
    and Stahl, Circuit Judge.
    _____________
    ____________________

    Brien T. O'Connor, Assistant United States Attorney, with whom


    __________________
    John Pappalardo, United States Attorney, was on brief for appellant
    _______________

    James R. Lemire for appellee.


    _______________
    ____________________
    July 7, 1993
    ____________________

    COFFIN, Senior Circuit Judge.


    ____________________
    from a
    from

    sentence in
    the

    which the

    Sentencing

    This is a governmental appeal

    district court

    Guidelines.

    The

    departed downward

    court

    determined

    that

    defendant's family situation revealed an aggravating circumstance

    making this an "unusual case" not contemplated by the Guidelines.


    Applying the

    modified standard of review for such cases recently

    announced in United States v. Rivera,


    _____________
    ______

    Nos. 92-1749, -2167, slip.

    op. (1st Cir. June 4, 1993), we affirm.


    Defendant Joseph Sclamo, Jr.
    deliver

    nine

    and

    one-half

    was arrested for attempting to

    ounces

    of

    cocaine

    to

    undercover

    agents.1

    He

    pled guilty to

    intent

    to distribute,

    Under

    the Guidelines,

    in

    a single
    violation of

    21 U.S.C.

    Sclamo's offense

    level was

    criminal history category was II.


    treated

    Sclamo's

    considered the

    criminal

    history

    category as

    history.

    sentence, with

    The government

    36 months

    with

    841(a)(1).
    17,

    The district court,

    higher category to overrepresent

    defendant's criminal
    month

    count of possession

    and his

    however,

    because

    it

    the severity of

    recommended a 28-

    of supervised

    release, and

    an

    assessment of $50.
    Sclamo requested a downward
    situation.
    and

    departure based on his domestic

    For some three years, he had been living with a woman

    her two children and

    had developed a

    special and crucially

    ____________________

    1 Sclamo's arrest stemmed from his involvement in a DEA


    operation targeting his father. The father was charged with two
    counts of drug offenses, to which he pled guilty, and was
    sentenced with defendant.
    The father received a sentence of 54
    months of imprisonment, 36 months of supervised release, and an
    assessment of $100.
    -2-

    important

    relationship

    Sclamo urged that his


    was

    in need of his

    with

    the

    twelve-year-old

    presence at home was

    son,

    James.

    vital to James,

    continuing companionship and

    guidance.

    who

    Two

    letters

    from James's psychologist

    were submitted

    with Sclamo's

    motion.

    According to the first letter, written in April, 1992, since


    age

    5,

    James

    continually had

    been

    alcoholic biological father.2

    abused

    physically by

    his

    James began to display aggressive

    and disruptive behavior at home and in school and was placed in a


    behavior

    disorder

    class.

    possessing "attention
    referred to

    deficit

    the psychologist

    weekly outreach basis

    Eventually,

    he

    was

    diagnosed

    hyperactivity disorder"

    as

    and

    for individual psychotherapy

    was

    on a

    to help him develop "more effective coping

    skills."
    James's mother divorced
    year

    in 1989.

    Sclamo began to live with James's family.

    saw Sclamo weekly,


    parenting

    skills

    and

    mature in

    behavior

    Sclamo as "very

    his judgement and

    stated that James now


    has developed

    modification

    In the

    instruction in

    techniques.

    follow through."

    and

    resulting in a dramatic reduction

    The

    supportive, concerned, and

    The psychologist

    views Sclamo as his stepfather,


    "warm

    same

    The psychologist

    giving him and James's mother

    psychologist praised

    he

    his father

    trusting

    relationship

    with whom
    .

    in aggressive acting out,"

    an

    absence of school suspensions, and improved grades.


    ____________________

    2
    James's father eventually was subjected to a restraining
    order and then given a two-year suspended sentence for abuse.
    -3-

    The

    psychologist

    concluded

    that

    Sclamo

    played

    major

    positive role in James's therapy

    and that his continued presence

    was

    increasing

    "necessary

    for

    James's

    psychologist warned that Sclamo's


    rob

    all members of a

    The

    "removal from the family would

    critical source of

    care and clinically could

    progress."

    affection and positive

    trigger a major regression in

    James's

    stability and emotional development."

    Six months later, a month before the sentencing hearing, the


    psychologist reported
    both at home

    in a

    and at school was

    "main stream class."


    and persistent
    James."

    second letter that

    that Sclamo

    to set clear and


    "has played

    James's progress and continues to be the


    for

    positive male

    James was now

    bonding," the

    firm limits with

    a tremendous

    only available resource

    a "positive father

    surrogate for this 12

    who

    most

    continued

    for

    that

    live at home, where he could

    serve as

    needy

    role in

    psychologist recommended

    defendant be allowed to continue to

    is

    in a

    The psychologist credited Sclamo's "ongoing

    efforts . . .

    Noting

    continuing.

    James's progress

    positive

    year old boy


    guidance

    and

    companionship to insure appropriate maturational development."


    Based
    downward
    ordinarily

    on

    this

    departure

    information,
    was

    the court

    appropriate.

    family circumstances

    do not

    It

    concluded

    that

    recognized

    constitute a

    "that

    basis for

    downward departure" but felt that precedents in which courts have


    departed downward "are very
    evidence

    of

    exceptional

    an
    risk

    much like this one in which there is

    exceptional
    of harm

    kind

    to a

    of

    child

    relationship
    if that

    and

    an

    relationship is

    -4-

    broken."

    Tr.

    at 22-23.

    The court

    further credited

    the two

    reports from the psychologist as constituting


    a very compelling set of evidence about a personal
    relationship that I don't think there's any reason to
    believe arose with any purpose of escaping criminal
    responsibility but has occurred independently of that,
    and it is, I think, a circumstance beyond in degree and
    nature those that were taken into account in the
    guidelines.
    Id.
    ___

    at

    22.

    probation,

    It accordingly

    sentenced

    with confinement at

    permission from

    the Chief

    Sclamo to

    home for six

    Probation Officer

    three years'

    months, subject to
    to leave

    home for

    work, shopping, and medical attention.

    On appeal, the government contends that family relationships


    are

    not a

    basis

    for departure.

    necessarily disrupts such

    It notes

    that

    relationships and that

    imprisonment

    the sentencing

    guidelines provide that "[f]amily ties and responsibilities . . .


    are not ordinarily relevant"

    in determining whether departure is

    appropriate.

    See
    ___

    USSG

    5H1.6.

    The government

    further cites a

    number of cases in which this court has refused to allow downward


    departures

    based on

    family

    circumstances.

    See, e.g.,
    ___ ____

    United
    ______

    States v. Carr, 932 F.2d 67, 72 (1st Cir. 1991).


    ______
    ____
    The

    government

    permitted

    based

    sufficiently
    points

    on

    also alleges
    family

    compelling to

    that,

    ties,

    even

    Sclamo's

    warrant

    if departure
    situation

    leniency.

    The

    is

    is

    not

    government

    out that Sclamo is not James's biological father and that

    their relationship

    has not been longstanding.

    Additionally, it

    urges that defendant's involvement in distributing cocaine in the

    -5-

    fall

    of 1989

    justified the recommended

    sentence of

    28 months'

    governed by

    our recent

    incarceration.
    The

    resolution of

    pronouncements

    in

    this

    United States
    _____________

    clear, the Guidelines say only


    ordinarily

    appeal is

    warrant departure.

    v.

    Rivera.
    ______

    As

    Rivera makes
    ______

    that family circumstances do


    See

    slip

    op.

    at

    12

    not

    (citing

    ___
    U.S.S.G. Ch. 5, Pt.
    this ground,

    H).

    Thus, while discouraging

    the Guidelines recognize that

    other-than-ordinary circumstances," id. at


    ___
    as a basis for departure.
    that

    departures on

    "special, unusual or

    16, may be considered

    Indeed, our earlier cases

    do not hold

    district courts lack authority to depart on this ground but

    merely illustrate circumstances not sufficiently extraordinary to


    warrant

    departure.

    See, e.g., United States v. Rushby, 936 F.2d


    ___ ____ _____________
    ______

    41, 43 (1st Cir. 1991).


    We briefly recapitulate the
    departure from the Guidelines
    first
    it

    is requested.

    The

    district court

    should ask: "What features of this case, potentially, take

    outside the Guidelines' `heartland' and make of it a special,

    or unusual,

    case?"

    Rivera, slip op. at 15.


    ______

    where the special features are


    on

    approach Rivera suggests when a


    ______

    to decide

    i.e.,
    ____

    whether

    discouraged, the court should "go

    the case

    whether the case differs

    those features are present."

    In cases like this,

    is nonetheless
    from the ordinary

    Id.
    ___

    If the case is

    not `ordinary,'

    case in which

    not ordinary,

    the court then may consider departure, deriving whatever guidance


    it

    can

    from

    experience

    and

    the

    Guidelines, but,

    informed judgment,"

    -6-

    ultimately,
    id. at
    ___

    17.

    "drawing
    If

    upon

    the court

    decides to depart,

    "it must

    other cases where the reason

    explain how the

    case (compared

    is present) is special. . .

    to

    ." Id.
    ___

    at 21 (emphasis omitted).
    As
    Rivera
    ______

    for

    our role

    modified

    in

    reviewing

    our prescriptions

    Villafane,
    _________

    874 F.2d 43 (1st

    said

    review of

    that

    circumstances

    were

    appropriately

    be

    the
    "of

    relied

    with full
    feel

    the

    district court's

    awareness of, and

    for the case, . . .

    is plenary."

    Diaz_____

    In Diaz-Villafane, we
    ______________

    judge's determination

    kind
    upon

    decisions,

    United States v.
    ______________

    Cir. 1989).

    "essentially plenary," id. at 49.


    ___
    now "review

    in

    district
    a

    such departure

    or
    to

    degree
    justify

    that

    they

    departure"

    Following Rivera, however,


    ______
    determination of

    respect for,

    that

    may

    was

    we

    unusualness

    the trier's

    superior

    not with the understanding that review

    Rivera, slip op. at


    ______

    23-24 (quoting Diaz-Villafane,


    ______________

    874 F.2d at 50) (internal quotation marks omitted).


    With

    this background

    and without

    repeating the

    essential

    facts in the two reports credited by the district court, we see a


    number of special factors

    that transform Sclamo's situation into

    an extraordinary one meriting the downward departure.

    See, e.g.,
    ___ ____

    United States v.
    ______________
    (affirming

    departure

    responsibilities
    an

    Johnson,
    _______

    for defendant

    124,
    who

    of an ordinary parent,

    ordinary single

    children);

    964 F.2d

    parent" as

    129 (2d
    "faced

    Cir.

    1992)

    more than

    the

    more even than those of

    sole caregiver

    of 4

    very young

    United States v. Pena, 930 F.2d 1486, 1495 (10th Cir.


    _____________
    ____

    1991) (affirming

    departure to

    avoid placing infant

    children at

    risk).
    -7-

    As an

    initial matter, we cannot fault

    conclusion that

    the district court's

    the psychological treatment and

    observations of

    James were not contrived or fabricated to assist Sclamo.

    James's

    referral for individual psychotherapy, made by a case worker with


    no

    connection to

    rise to

    this case.

    defendant,
    Moreover,

    predated the
    the

    circumstances giving

    psychologist's reports

    are

    based on a long history of personal observation, interaction, and


    treatment

    not only

    district

    court,

    of

    James but

    therefore,

    was

    psychologist's professional judgment

    of defendant
    entitled

    as
    to

    well.

    The

    credit

    the

    of the critical and

    role played by defendant in James's treatment.

    unique

    Turning

    to the family ties at issue, we think that Sclamo's

    situation is readily distinguished from ordinary cases, where one


    can

    only speculate about

    the stresses

    family member might cause.


    only that James

    that incarceration

    In this case, there

    already suffers

    from a

    of a

    is evidence not

    clinical disorder,

    but

    that his condition will deteriorate if defendant is incarcerated.


    Sclamo has a

    track record

    guidance of James over


    both

    instructed

    psychologist's

    and

    of steady and

    effective support

    a lengthy period during which


    monitored

    prognosis that

    by

    harm if

    defendant were incarcerated amply

    court's

    determination that

    Sclamo's

    Sclamo was

    psychologist.

    James would

    risk

    and

    The

    regression and

    supports the district

    relationship

    to James

    is

    sufficiently extraordinary to sustain a downward departure.


    We therefore
    standard

    think that, under our

    present more restricted

    of review, the decision made by the district court must


    -8-

    be

    affirmed.

    We acknowledge

    that

    our

    own

    circumstances setting this

    case apart from the

    more

    than that of the

    lengthy and detailed

    analysis of

    the

    ordinary case is

    district court.

    In

    future cases we would expect, in line with our general discussion

    in Rivera, a very deliberate discussion of the factors making the


    ______
    case unusual.

    But we see no purpose served in this case, decided

    below without the benefit of our recent guidance, in remanding to


    make explicit what was implicit.
    Affirmed.
    ________

    -9-

    You might also like