United States of America, Appellant, v. Edward Delloiacono, A/k/a Michael Devine, Edward Delloiacano, Defendant, Appellee, 900 F.2d 481 (1st Cir. 1990)

The defendant entered a plea of guilty to a felony information charging one count of wire fraud. In due course the district court imposed a sentence of probation, conditioned on the performance of 1,000 hours of community service under the supervision of the probation office. The government asserts on appeal that the sentence was imposed as a result of an incorrect application of the Sentencing Guidelines promulgated by the United States Sentencing Commission. We conclude that a probationary sentence was authorized, but that the district court incorrectly applied the sentencing guidelines requiring that a probationary sentence imposed in lieu of a term of imprisonment be conditioned on "intermittent confinement" or "community confinement." As the sentence of probation was not conditioned on any form of confinement, we remand the case for further sentencing proceedings.

DISCUSSION

The Sentencing Reform Act of 1984, as amended, 18 U.S.C.A. Secs. 3551-3586 (West 1985 and Supp.1988); 28 U.S.C.A. Secs. 991-998 (West Supp.1988), requires "a sentence of the kind, and within the range " prescribed by the Sentencing Commission. 18 U.S.C. § 3553(b) (emphasis added).¹  No guideline sentence may depart from the kind or range indicated by the Sentencing Guidelines

unless the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described. In determining whether a circumstance was adequately taken into consideration, the court shall consider only the sentencing guidelines, policy statements, and official commentary of the Commission.

Id. See United States v. Chase, 894 F.2d 488, 490-91 (1st Cir. 1990). See generally U.S.S.G. Ch. 5, Pt. K.² 

(i) Guideline Parity

The defendant argues that the district court departed from the applicable guideline sentencing range, notwithstanding its direct statement to the contrary and its unambiguous ipse dixit that the probationary sentence it imposed on the defendant achieved parity with the sentencing guidelines permitting substitution of a term of intermittent confinement for a term of imprisonment.

THE COURT: I demonstrate (sic) it to be a sentence within the guidelines, and I believe that the imposition of community service that I just imposed satisfies the requirement of the intermittent confinement.

Indeed, I think it would be a matter of idiocy to say that intermittent confinement--I could have him stay in his house watching television, say, 'You can't leave your house, I'll ground you for weekends for three years.' I think it makes much more sense to interpret that as saying that, 'You will be confined at a place where the chief probation officer tells you you will work for one thousand hours.' I think that's what makes sense.

....

I think it would be idiocy to say that intermittent confinement should be or could be confinement to one's home for weekends. I think it makes much more sense to say intermittent confinement would include probation officer instructing him, say, to go to the Fernald School and scrub toilet bowls for a weekend.

....

THE COURT: But I will instruct you, if you have it appealed, to have that typed up. That's an order. Do you understand?

See 18 U.S.C. § 3553(c).³ 

We can discern no intention to depart, and no statement of reasons for departure, from the range or kind of sentence required by the Sentencing Guidelines. See id. Sec. 3553(c) (2). Rather, as the district court recognized, in these circumstances the Sentencing Guidelines authorize the substitution of a probationary sentence for a term of imprisonment.

If the minimum term of imprisonment in the applicable guideline range in the Sentencing Table is at least one but not more than six months, the minimum term may be satisfied by ... (2) a sentence of probation that includes a condition or combination of conditions that substitute intermittent confinement or community confinement for imprisonment according to the schedule in Sec. 5C2.1(e)....

Although determination of the exact offense level applicable to the criminal conduct in this case must await remand,⁵  the present analysis is not affected since it is clear in any event that the minimum guideline range will be not less than one month or more than six months.⁶  Thus, guideline section 5C2.1(c) (2) permitted the substitution of a sentence of probation, conditioned on intermittent confinement "in prison or jail," Sec. 5C2.1(e) (1), or conditioned on community confinement ("residence in a community treatment center, halfway house, or similar residential facility") Sec. 5C2.1(e) (2),⁷  but not the substitution of a sentence of probation of the kind imposed in this case which included no condition of confinement, see U.S.S.G. Ch. 1, Pt. A, Sec. 4(d), intro. comment.; U.S.S.G. Sec. 5C2.1, comment. (n. 3).⁸  We hold that the Sentencing Guidelines foreclose the district court's conception that its sentence of probation, coupled with community service, approaches guideline parity with a sentence of probation conditioned on confinement.⁹ 

(ii) Guideline Departure

Even though the record discloses no intention to depart from the applicable sentencing guideline range, it is conceivable that the district court may have meant to depart from the kind of substitute sentence of probation authorized under the applicable sentencing guidelines, despite its failure to assign a "specific reason," see 18 U.S.C. § 3553(c) (2), other than its conception of guideline parity. Were that the case, however, there still would be no principled basis for concluding that the manifest policy of the Sentencing Guidelines--that community service not be considered an acceptable substitute for a term of confinement--was adopted by the Sentencing Commission without adequate consideration. See 18 U.S.C. § 3553(a) (4), (b). The Sentencing Reform Act of 1984, see, e.g., 28 U.S.C. §§ 991(b) (1) & 994(a) (1), (b),¹⁰  the Sentencing Guidelines, see, e.g., U.S.S.G. Secs. 5B1.1(a) (2); 5C2.1(c) (2), (e), and the related Guideline Commentary, see, e.g., U.S.S.G. Sec. 5C2.1, comment. (n. 3); Sec. 5F5.2, comment. (n. 1); U.S.S.G. Ch. 1, Pt. A, Sec. 4(d), intro. comment., manifestly recognize that imprisonment is more punitive than probation and that it is the requirement of confinement, more than anything else, that makes it so.

The Sentencing Guidelines evidence an elaborate strategy for accommodating the competing policy aims implicated in a typical fraud case, like the present. The Sentencing Commission concluded that certain economic crimes, such as fraud, are "serious," and that serious economic crimes can be deterred significantly under a sentencing scheme that holds out "the definite prospect of prison, though the term is short...." Id. At the same time, a competing congressional mandate--requiring that the courts recognize "that imprisonment is not an appropriate means of promoting correction and rehabilitation," 18 U.S.C. § 3582(a); see also 28 U.S.C. § 994(j)--posed a potential impediment to the Sentencing Commission's approach to deterring economic crimes. The Sentencing Commission accordingly structured the Sentencing Guidelines to require that a first offender, convicted of serious fraud, must serve at least a brief period of confinement, leaving considerable discretion in the sentencing court, however, to determine not only its duration, intermittency and restrictiveness, but the place of confinement.

CONCLUSION

The Sentencing Guidelines leave no doubt that the Sentencing Commission adequately considered, and plainly rejected, in the present circumstances, any probationary sentence, without confinement, as an acceptable alternative to a sentence of imprisonment. That surely should have constrained the district court's quest for a substitute sentence of probation in the present case. See 18 U.S.C. § 3553(b). The imposition of a sentence of probation, without confinement, in place of the sentence of imprisonment otherwise mandated by the Sentencing Guidelines, constituted an abuse of discretion. The sentence is vacated and the case is remanded for further sentencing proceedings consistent with this opinion. See D. Mass. L.R. 8(i).

VACATED and REMANDED.