United States v. Vernon Lee Bad Marriage, Jr.

392 F.3d 1103 UNITED STATES of America, Plaintiff-Appellee, v. Vernon Lee BAD MARRIAGE, Jr., Defendant-Appellant. No. 03-30404. United States Court of Appeals, Ninth Circuit. Argued and Submitted June 8, 2004. Filed December 30, 2004. David F. Ness, Federal Defender, Great Falls, MT, for the defendant-appellant. Joshua A. Van de Wetering (argued), Assistant United States Attorney, Missoula, MT; Joseph E. Thaggard (briefed), Assistant United States Attorney, Great Falls, MT, for the plaintiff-appellee. Appeal from the United States District Court for the District of Montana, Sam E. Haddon, District Judge, Presiding. D.C. No. CR-03-00029-SEH. Before: PREGERSON, FERGUSON, and CALLAHAN, Circuit Judges. FERGUSON, Circuit Judge: 1 This case is a powerful indictment of the criminal justice system. Our social and penal policies are failing to alleviate alcohol abuse on Indian reservations and the crime to which it gives rise. These problems cry out for treatment, not simply more prison time. 2 Vernon Lee Bad Marriage, Jr. ("Bad Marriage") is a member of the Blackfeet Indian Tribe with an extensive history of alcohol abuse and a lengthy criminal record. He was convicted of assault…

This case is a powerful indictment of the criminal justice system. Our social and penal policies are failing to alleviate alcohol abuse on Indian reservations and the crime to which it gives rise. These problems cry out for treatment, not simply more prison time.

Vernon Lee Bad Marriage, Jr. (“Bad Marriage”) is a member of the Blackfeet Indian Tribe with an extensive history of alcohol abuse and a lengthy criminal record. He was convicted of assault resulting in serious bodily injury, in violation of 18 U.S.C. §§ 113 (a)(6) and 1153(a), and sentenced under the U.S. Sentencing Guidelines. The District Court departed upward from the applicable sentencing range on the grounds that Bad Marriage’s criminal history score did not adequately reflect the seriousness of his past criminal history and the likelihood that he would commit other crimes. Because we hold that the upward departure was not justified under the facts of this case, we reverse and remand for resentencing.

FACTUAL HISTORY AND PROCEDURAL BACKGROUND

I. Facts of Current Offense

On January 30, 2003, Bad Marriage was released from tribal jail on the Blackfeet *1105 Indian Reservation so that he could attend an Alcoholics…

dissenting.

The majority concludes that the length of a defendant’s criminal history should *1116 not, on its own, support an upward departure under U.S.S.G. § 4A1.3. It instead holds that the seriousness of a defendant’s convictions must be a significant factor in a decision to depart under § 4A1.3. This conclusion directly contradicts the plain language of the U.S. Sentencing Guidelines 1 and unnecessarily restricts a district court’s discretion in sentencing. I therefore respectfully dissent.

I

As the majority correctly notes, we have held that a finding of either the seriousness of a defendant’s past conduct or the likelihood of recidivism can support an upward departure. United States v. Connelly, 156 F.3d 978, 984-85 (9th Cir.1998). There, we approved an upward departure “purely on the basis of Defendant’s likelihood of recidivism.” Id. at 985 . We nevertheless noted, but declined to answer, the question of whether the uncounted acts of criminal conduct used to support an upward departure must “cross a threshold of ‘seriousness’ ” in all cases. Id. at 984 ; United States v. Martin, 278 F.3d 988 , 1002 n. 4 (9th Cir.2002). The majority now seems to answer this question by…