Unpublished Disposition, 915 F.2d 1581 (9th Cir. 1990)

MEMORANDUM^* 

Panagiotis Velliodis appeals his sentence of 40 months imprisonment for bank robbery in violation of 18 U.S.C. § 2113(a). Velliodis committed the offense with James Kozlowski, and each defendant pled guilty to one count of bank robbery. Velliodis contends that the district court erred in departing upward from the Federal Sentencing Guideline range of 24 to 30 months.¹  We reverse and remand.

I. Notice of the District Court's Intent to Depart

In this case, the district court notified Velliodis that it was inclined to depart because it believed that Velliodis was a corrupting influence on his co-defendant Kozlowski. The court, however, did not adequately notify the defendant of the factual basis for this conclusion. The court erroneously stated that the information suggesting a corruptive influence could be found in Kozlowski's presentence report. In fact, neither the presentence report nor the transcript of Kozlowski's sentencing hearing mentions that Velliodis corrupted his co-defendant or otherwise influenced Kozlowski in any way. Rather, this information can be found in Kozlowski's agreed statement of facts²  and Kozlowski's sentencing memorandum prepared by counsel³ . Because the court did not accurately recall where this information could be found, defense counsel did not have either Kozlowski's statement of facts or sentencing memorandum in preparing for Velliodis' final sentencing hearing.

We have held that the defendant must be provided a meaningful opportunity to comment on the grounds for departure. United States v. Nuno-Para, 877 F.2d 1409, 1415 (9th Cir. 1989) (notice inadequate where facts were included in presentence report but not specifically identified as basis for departure). As the government argues, it is evident that the district court relied on Kozlowski's statement of facts and sentencing memorandum in finding that Velliodis was a corrupting influence on Kozlowski. Because defense counsel was not provided these documents before final sentencing, the defendant was not afforded adequate notice of the grounds for departure or a meaningful opportunity to comment on the court's grounds. Therefore, we vacate and remand for resentencing.

II. The District Court's Reasons for Departure

Whether the district court adequately identified an aggravating circumstance is reviewed de novo. United States v. Gomez, 901 F.2d 728, 729 (9th Cir. 1990).

In sentencing Velliodis, the district court stated that it found that Velliodis was "the corrupting influence and ... primary instigator of the conduct of the two defendants...." The court further stated that it was departing from the guideline range because Velliodis was "in the Court's view, the one who corrupted another person, a young--a young man with no prior criminal record, and who was vulnerable and, in my view, easily persuaded to go into a life of crime."

In this case, the district court adequately identified the aggravating circumstance as Velliodis' corruptive influence on James Kozlowski, his co-defendant. Although the district court may have confused the issue by referring to Velliodis' age and criminal record, it is clear the court found that Velliodis influenced Kozlowski into committing a criminal offense.

In announcing the reason for departure, however, a sentencing court must also find that the Sentencing Commission did not adequately consider the aggravating circumstance in formulating the guidelines. Absent such a finding, departure is not permitted. United States v. Michel, 876 F.2d 784, 786 (9th Cir. 1989). In the present case, the court never found that corruptive influence was not considered by the Sentencing Commission in formulating the guidelines. As a result, we must also vacate the sentence on this basis and remand for such a finding.

Finally, we note that because the case is remanded to the district court for a finding as to whether the guidelines account for a defendant's corruptive influence, this court need not decide that issue. In deciding this issue on remand, however, the district court may wish to consider guideline Sec. 3B1.1(c), which adjusts a defendant's offense level for his role in the offense. This guideline provides for a two level increase in the total offense level " [i]f the defendant was an organizer, leader, manager, or supervisor in any criminal activity." United States Sentencing Commission, Guidelines Manual, Sec. 3B1.1(c). Moreover, this section provides an adjustment to account for "the degree to which a defendant was responsible for committing an offense," and "is included primarily because of concerns about relative responsibility." Guidelines Manual, Sec. 3B1.1, comment (backg'd.).

Therefore, it appears that this adjustment covers the situation where one defendant is more culpable then another, or as the court described, where one defendant corrupts another person. If the district court finds that corruptive influence is not adequately considered in the guidelines, the court should explain why Sec. 3B1.1(c) is inadequate.

REVERSED AND REMANDED.