United States v. Minutoli

Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
7-8-2004
USA v. Minutoli
Precedential or Non-Precedential: Precedential
Docket No. 02-3108
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PRECEDENTIAL Attorney for Appellant
UNITED STATES COURT OF Mary Beth Buchanan
APPEALS United States Attorney
FOR THE THIRD CIRCUIT Office of the United States Attorney
Bonnie R. Schlueter, Esq.
Michael L. Ivory, Esq.
No. 02-3108 Kelly R. Labby, Esq. (Argued)
633 U.S. Post Office & Courthouse
Pittsburgh, PA 15219
UNITED STATES OF AMERICA
Attorneys for Appellee
v.
LISA ANN MINUTOLI,
Appellant OPINION OF THE COURT
APPEAL FROM THE UNITED
STATES DISTRICT COURT BARRY, Circuit Judge
FOR THE WESTERN DISTRICT OF
PENNSYLVANIA We are called upon to decide
D.C. Crim. No. 01-cr-00176 whether we have jurisdiction to review a
District Judge: The Honorable Donetta district court’s discretionary refusal to
W. Ambrose downward depart from the applicable
Sentencing Guideline range when that
refusal is based in whole or in part on an
Argued: February 25, 2004 alleged mistake of fact. The well-
established precedent of this Court
mandates the answer to this question, and
Before: RENDELL, BARRY, and the answer is a ringing “no.”
FISHER, Circuit Judges
I. INTRODUCTION
(Opinion Filed: July 8, 2004 ) On August 29, 2001, a federal
grand jury returned a two-count indictment
against Lisa Ann Minutoli (“Minutoli”).
Stanton D. Levenson, Esq. (Argued) Count One charged Minutoli w ith
1715 Gulf Tower possession with intent to distribute a
Pittsburgh, PA 15219 mixture and substance containing a
1
detectable amount of 3,4- party, the coercion and
m e t h y le n e d i o x y m e t h a m p h e t a m i n e duress does not rise to the
(MDMA), in the form of “Ecstasy” tablets, l e v e l t h a t w a r r a n ts
in violation of 21 U.S.C. §§ 841(a)(1) and de parture. (emphasis
841(b)(1)(C); and Count Two charged added).
unlawful importation into the United
States of said tablets, in violation of 21 In denying her request for an adjustment
U.S.C. §§ 952(a) and 960(b)(3). M inutoli for minor role, the District Court stated:
pled guilty to Count Two, and Count One
was subsequently dismissed. My understanding of this
case and what I believe has
It was not disputed that under the been demonstrated by the
United States Sentencing Guidelines e v i d e n c e is that t h e
(USSG), Minutoli’s base offense level was defendant was not just a
29 and her criminal history category was I, mere, to use an adjective,
resulting in a range of 87-108 months’ courier. Her importance to
imprisonment. Prior to sentencing, the success of the venture
however, Minutoli moved for a downward was vital.
departure, based on reduced mental ***
capacity (USSG § 5K2.13) and coercion But, as I indicated, I do not
and duress (USSG § 5K2.12), and for a believe, based on the
two-level reduction in her offense level as evidence, that you were a
a minor participant. (USSG § 3B1.2(b)). minor participant because of
The District Court denied these requests your importance, your
and, on July 25, 2002, sentenced Minutoli knowledge of these – the
to 87 months’ imprisonment, to be nature and scope of the
followed by three years’ supervised enterprise.
release. In denying the downward
departure, the District Court stated, in part: Minutoli raises two issues on
appeal. First, she contends that the District
[W]hile I recognize my Court made a factual error in concluding
ability to depart under that the testimony at the sentencing
5K2.12, without threat of hearing did not support a finding of
physical injury resulting physical threats and, thus, she was wrongly
from unlawful actions of a denied a downward departure under §
third party, which I don’t 5K2.12. Second, she contends that as a
believe was in the testimony, “mere” drug courier, she was entitled to a
or substantial damage to downward adjustment for her minor role in
property resulting from
unlawful action of a third
2
the offense.1 We will affirm the judgment knew as David, but whose name was, in
and sentence. fact, Elly, and with whom she carried on a
romantic relationship for four months.
II. BACKGROUND
Soon after they met, David
Sometime in the spring of 2001, informed Minutoli that the organization
Minutoli, a long-time drug user, was with which they were affiliated was an
recruited as a drug courier by a woman international drug ring and that he planned
named Christine Segetti, whom she had to break away and begin his own
met through her personal drug dealer. smuggling operation. Thus, in June 2001,
Segetti offered Minutoli $20,000, in return David and Minutoli traveled to Tijuana,
for which she traveled from Los Angeles Mexico, where they met with persons from
to Paris and then to Amsterdam, where she several countries and planned the
was given Ecstacy tablets by a man named operation, although M inutoli disclaimed
Joseph, and returned with the drugs to any role in the planning. After returning
New York City. 2 While in New York City, from Tijuana, David told Minutoli that she
she gave the drugs, minus a small portion was to go to Germany and transport drugs
for herself, to one Thomas-Elan. After back to the United States. Minutoli did not
spending about a week-and-a-half with want to make the trip and argued with
Thomas-Elan and Segetti, she returned to David about it, angering him to the point
Los Angeles, where she met a man she that he threw a car stereo at her. When
David threatened to kill her, she agreed to
1
go. The night before she left, and to
The District Court carefully assure that she would do what she had
considered this request; discussed the agreed to do, David placed his gun on top
factors we deemed important in United of a bedroom dresser before getting into
States v. Headley, 923 F.2d 1079 (3d Cir. bed with her. David was often verbally
1991), and United States v. Isaza-Zapata, abusive to her, physically threatened her,
148 F.3d 236 (3d Cir. 1998); and and told her that he had killed people
correctly determined that an adjustment before. Minutoli felt trapped by him both
for minor role was not warranted. The physically and financially, in part because
correctness of that determination is he continuously provided drugs to her,
underscored by our subsequent decision escalating her addiction. In sum, she
in United States v. Rodriguez, 342 F.3d claimed, he “broke” her.3
296 (3d Cir. 2003). We see no reason to
discuss the minor role contention further.
3
This testimony was elicited at
2
Minutoli testified that she only sentencing from M inutoli and from Dr.
received $10,000, and claims that that Lawson Bernstein, a forensic
was later stolen from her by Segetti. neuropsychiatrist. Dr. Bernstein
3
On July 24, 2001, David drove Minutoli’s other bags were a business
Minutoli to the Los Angeles airport and diary and a spiral-bound notebook. The
warned her that people would be watching business diary contained a list of
her while she was in Germany. Upon her controlled substances with monetary
arrival in Germany, she checked into a amounts next to them, and the spiral-
hotel and informed her contact in bound notebook contained several pages of
Amsterdam, a man named Daniel, of her individuals’ names with monetary amounts
location. Daniel provided her with money next to them. The notebook list appeared
for her hotel and periodically stopped by to to be a record of drug debts.
check on her. Additionally, David phoned
her nearly every day. The day before her III. DISCUSSION
return to the United States, Daniel
provided her with a suitcase for the trip. It is well-established in this Court
that we lack jurisdiction to review the
Upon her arrival at the Pittsburgh merits of a district court’s discretionary
International Airport, Minutoli was decision to refuse a downward departure
questioned and selected for examination under the Sentencing Guidelines once we
by a United States Customs Inspector. determine that the district court properly
When asked to open the suitcase Daniel understood its authority to grant a
had provided to her, she claimed that she departure:
had forgotten the combination to the lock.
After obtaining verbal permission, the If we determine the district
Inspector pried the suitcase open. In plain court was aware of its
view lay numerous plastic bags containing authority to depart from the
white tablets. These tablets, numbering Guidelines, and chose not
69,805, were MDM A or “Ecstasy,” with to, we are without power to
an estimated street value of between inquire further into the
$1,396,100 and $2,094,150. Found in merits of its refusal to grant
[the defendant’s] request.
See U nited States v.
Denardi, 892 F.2d 269, 272
admitted on cross-examination that his
(3d Cir. 1989). Stated
diagnosis and conclusion were almost
di f f e r e n tly, w e h a v e
exclusively based upon representations
jur isdic tion to dec ide
made to him by Minutoli, and cited to her
whether a sentencing court
disclosures that David provided her with
erred legally when not
drugs, coerced her into degrading sexual
making a reques ted
practices, verbally abused her, made her
discretionary downward
financially dependent upon him, and
departure, but we cannot
implied “physical harm in a variety of
hear a challenge to the
actions.”
4
merits of a of the Guidelines within the meaning of 18
sentencing court’s U.S.C. § 3742.
discretionary
decision not to depart The District Court understood its
downward from the authority to depart, and there was nothing
Guidelines. Id. complicated or ambiguous about the
Court’s statement: “I recognize my ability
United States v. Georgiadis, 933 F.2d to depart.” We could say, and it would not
1219, 1222 (3d Cir. 1991); see also, e.g., be the least bit facile to do so, that the
United States v. Gori, 324 F.3d 234, 239 District Court did precisely what we have
(3d Cir. 2003); United States v. Powell, encouraged district courts to do, i.e.
269 F.3d 175, 178-80 (3d Cir. 2001); indicate an awareness of the ability to
United States v. Stevens, 223 F.3d 239, depart, and that, therefore, under our well-
247-48 (3d Cir. 2000); United States v. established precedent, we lack jurisdiction
Evans, 49 F.3d 109, 111 (3d Cir. 1995); to review the discretionary denial of the
United States v. Mummert, 34 F.3d 201, departure.5 Game, set, and match.
205 (3d Cir. 1994); United States v.
Gaskill, 991 F.2d 82, 84 (3d Cir. 1993); But, says the dissent, the District
United States v. Love, 985 F.2d 732, 734, Court did not mean what it said. Rather,
n.3 (3d Cir. 1993); United States v. the argument goes, the Court was being
Higgins, 967 F.2d 841, 844 (3d Cir. disingenuous because it “was actually
1992). 4 The Courts of Appeals, virtually concluding” (emphasis added) “that it
unanimously, accept this general rule lacked the authority to [depart] based on
whether that rule be framed in the facts of this case.” Accordingly, the
jurisdictional terms, as our cases frame it, dissent continues, “the sentence imposed
or in terms of unfettered discretion where ‘resulted from’ an incorrect application of
there has not been an incorrect application the Guidelines, and we can review it
4 5
Parenthetically, if, as the dissent While district courts need not utter
states, only a fraction of the numerous the magic words, “I recognize I have
appeals we decide involving jurisdiction authority to grant the downward
to review denials of downward departure,” we have strongly encouraged
departures have resulted in precedential them to do so, in order both to simplify
opinions, it is because our law in this our inquiry and to eliminate any
area is settled, not because it is ambiguity. See Georgiadis, 933 F.2d at
underdeveloped. And, we note, the cases 1223. We reiterate this encouragement
the dissent briefly synopsizes in note 4 whenever guideline sentencing is
almost without exception recite our well- discussed at such events as our Court’s
settled law in this area. bench/bar conferences.
5
pursuant to 18 U.S.C. § 3742(a)(2).” impairment, finding that the defendant’s
Dissent at 1. Indeed, concludes the “condition was ‘not that type of an
dissent, “we can, and should” assume impairment so severe and complete that
jurisdiction over all appeals in which it is the downward departure [was] ...
alleged that the District Court made a warranted.’” Id. at 730. Then Judge, now
clearly erroneous factual determination in Chief Judge, Scirica, writing for the
the course of denying a discretionary majority, explained that this statement
downward departure, for we must assure could mean one of two things: either “that
that the District Court accurately Mc Quilkin’s impairment was not
understood and correctly determined the extraordinary enough to allow the court to
facts of the case. Completing the circle, an depart under the authority of § 5H1.4; or
erroneous factual finding is an incorrect that the nature of the impairment was
application of the guidelines that can be sufficiently extraordinary to allow the
reviewed. It bears repetition that the court to depart, but that the court elected
alleged error here was not whether the not to depart on this occasion.” Id. Judge
District Court mistakenly believed it Scirica interpreted the statement to mean
lacked the authority to depart but whether, that the District Court thought that
at the sentencing hearing, there was McQuilken’s condition – a left arm injury,
testimony of threats of physical injury, a and a congenital defect in his left eye – did
paradigm factual inquiry. not qualify him for the requested
departure. There was no question that
While we have not explicitly stated McQuilkin actually had that condition; the
that we lack jurisdiction to review the only question was whether that condition
allegation of a factual error in the course was of the type that empowered the
of a discretionary refusal to depart, that District Court to grant the departure.
conclusion is surely implicit in our cases. Thus, the District Court’s legal conclusion
Moreover, we reject out of hand the about its authority was at issue, not
dissent’s statement that “our decision in whether particular facts existed or whether
[United States v.] McQuilkin[, 97 F.3d its factual finding that McQuilkin was not
723 (3d Cir. 1996)] has already placed us as impaired as he claimed was correct.
on that side of the issue.” Dissent at 13.
Indeed, says the dissent, McQuilkin is “the Parenthe tic all y, the dis sent
case that most clearly stands for the attributes great significance to the
proposition that we can review for clear McQuilkin Court’s use of the phrase “clear
error in a case like this one.” Id. at 13. error.” Because we used that phrase, the
dissent argues, we “obviously were not
But McQuilkin was not a case “like reviewing a purely legal conclusion.”
this one.” In McQuilkin, the District Court Dissent at 9. It is fair to say that, given the
refused to grant a discretionary downward legal conclusion we were reviewing, to
departure for extraordinary physical have invoked clear error as to the standard
6
of review was, at best, confusing. But if 2001). 6
“clear error” was inadvisedly used in
McQuilkin, that error has not been At bottom, then, the dissent is left
repeated in any one of numerous
precedential opinions in this area that have
followed. 6
An earlier First Circuit case explained
when an appeal does and does not lie:
McQuilkin is but one of a number
of our cases cited by the dissent to support
If the judge sets differential
a finding of jurisdiction to review denials
factfinding and evaluative
of requests for downward departures.
judgments to one side, and
Without exception, however, in each case
says, in effect, “this
in which jurisdiction was found, it was
circumstance of which you
because of a legal rather than a factual
speak, even if it exists, does
conclusion. See, e.g., United States v.
not constitute a legally
Dominguez, 296 F.3d 192 (3d Cir. 2002)
sufficient basis for
(finding jurisdiction to review a refusal to
departure,” then the
depart downward based on district court’s
correctness of that
erroneous legal conclusion that it lacked
quintessentially legal
jurisdiction to consider the requested
determination may be
departure); United States v. Castano-
tested on appeal. But if the
Vasquez, 266 F.3d 228 (3d Cir. 2001)
judge says, in effect, either
(district court adopted the proper legal
that “this circumstance of
s t a n d a r d / a n a l yt i c al c o n s t r u ct f or
which you speak has not
interpreting and applying newly enacted
been shown to exist in this
USSG § 5K2.20 and, citing McQuilkin,
case,” or, alternatively, that
made clear that “[w]e lack jurisdiction to
“while this circumstance of
review a refusal to depart downward when
which you speak might
the district court, knowing it may do so,
exist and might constitute a
nonetheless determines that departure is
legally cognizable basis for
not warranted”); United States v. Bierley,
a departure in a theoretical
922 F.2d 1061 (3d Cir. 1990) (finding
sense, it does not render
jurisdiction because district court’s
this particular case
decision not to depart was predicated on
sufficiently unusual to
legally erroneous impression that it did not
warrant departing,” then, in
have authority to depart). As the First
either such event, no
Circuit observed, “in the context of
appeal lies.
departures, the touchstone of appealability
is a mistake of law.” United States v.
United States v. Pierro, 32 F.3d 611, 619
Dewire, 271 F.3d 333, 337 (1st Cir.
(1st Cir. 1994).
7
with United States v. Sammoury, 74 F.3d not a misapplication of the
1341 (D.C. Cir. 1996), the case, apart from S e n t e n c in g G u i d e l in e s
McQuilkin, on which it principally relies. simply because the district
To be sure, the Sammoury Court court, as a matter of
concluded that if a discretionary refusal to discretion, refuses to impose
depart is based on a clearly erroneous a lesser sentence than the
factual mistake, that decision is reviewable law authorizes, even if its
on appeal. It is just as surely wrong, and factual reasons for doing so
has not once been cited for this novel are mistaken.
conclusion, much less followed, by any
Court of Appeals. Indeed, the one Court Dewire, 271 F.3d at 338-39 (quotation,
of Appeals that has even discussed this citations and note omitted).
conclusion has explicitly and persuasively
rejected it. Dewire, 271 F.3d 333. We The Fourth Circuit has also rejected
cannot say it better than that Court said it: an exception for alleged factual mistakes
to the rule that “the only circumstance in
The reasoning in Sammoury which review is available is when the
was based on a conflation of district court mistakenly believed that it
18 U.S.C. §§ 3742(a)(2) and lacked the authority to depart.” United
(e)(2), which authorize States v. Underwood, 970 F.2d 1336, 1338
review of a sentence based (4th Cir. 1992); see also United States v.
on an incorrect application Matthews, 209 F.3d 338, 352-53 (4th Cir.
o f t h e Sentencin g 2000). The Seventh Circuit concurs: “[A]
Guidelines, with section determination by the sentencing judge that
3742(e)’s mandate that the facts of a case do not support a
appellate courts are to downward departure is not reviewable on
“accept the findings of fact appeal.” United States v. Steels, 38 F.3d
of the district court [on 350, 352 (7th Cir. 1994).
sentencing matters] unless
they are clearly erroneous” . The dissent concedes this much:
. . We believe that “we cannot review a purely discretionary
Sammoury misapprehends refusal to depart . . . where the court
the difference between a correctly determines the relevant facts and
factually correct application applies the appropriate Guideline
of the sentencing guidelines, principles” and where it is “clear that the
to which a defendant is sentence did not result from the allegedly
entitled, and the award of a mistaken factual finding.” Dissent at 3-4,
discretionary departure, to 11. But would we not have to review to
which he is not. An determine if it was “clear” that the facts
otherwise proper sentence is were correctly determined or, as the
8
dissent phrases it, to see if the District fact may have exerted on a
Court had an “accurate perception of the tri a l j u d g e ’ s u ltima te
facts”? Indeed, would we not, then, be sentencing decision.
addressing the merits of the departure
request itself even before we are able to Dewire, 271 F.3d at 339-40 (notes
determine that we have jurisdiction to omitted). The Court illustrated the last
address the merits? See Mummert, 34 point: if, for example, a defendant shows
F.3d at 205. that one of a trial judge’s three reasons for
refusing to depart was wrong, the appeals
It does not require any great leap of court would have to consider whether
faith to believe that were the dissent to either of the other two reasons would have
carry the day, there will nary be an appeal been sufficient and the degree to which
from the denial of a downward departure that reason influenced the judge’s
that will not contain an allegation of thinking, vitiating the broad discretion
factual error. It also does not require any granted to sentencing judges.
great leap of faith to predict that district
courts may well eschew explanations for Returning to where we began, our
their refusals to depart and simply state precedent and sound policy reasons
that they are denying departures on mandate the conclusion that where a
discretionary (as opposed to legal) district court allegedly made a mistake of
grounds, while recognizing their authority fact when, in the exercise of its discretion,
to grant those departures. As the Dewire it refused to grant a request for a
Court put it: downward departure, while aware of its
authority to grant that request, we lack
The precedents to which we jurisdiction to review that decision.
adhere in today’s decision
rest on sound polic y IV. CONCLUSION
grounds. Because a trial
court’s refusal to depart is Because the District Court correctly
inherently discretionary and denied an adjustment for minor role in the
fact-based, a rule contrary to offense, we will affirm the judgment and
our precedent would invite sentence. We lack jurisdiction to review
frivolous appeals, the denial of the request for a downward
discourage trial judges from departure.
explaining a refusal to
depart, and require this court
to second-guess, on a cold,
and often factually dense
r e c ord, the su bjecti ve
influence that a questionable
9
[US v. Minutoli, 02-3108 (2/25/04)] there was no record evidence of threats of
physical injury or physical damage to
RENDELL, Circuit Judge, Dissenting. property. Therefore, rather than exercising
its discretion, I submit that the Court was
The line between an unreviewable actually concluding that it lacked the
discretionary refusal to depart and a legal authority to grant a § 5K2.12 departure
or fact-based determination that the court based on the facts of this case.
lacks the authority to depart in a given case
is often hard to discern. This is especially Reading the Court’s reasoning in
so given the language that district courts toto, it becomes apparent that the District
are routinely using in explaining their Court’s statement regarding its “ability” to
sentencing decisions. The District Court depart was not a legal conclusion; rather,
in the instant case made the following the statement was a reference to the fact
statement regarding the departure under § that the departure provision for coercion or
5K2.12 of the Sentencing Guidelines: duress in § 5K2.12 was potentially
applicable here. However, the Court went
And with the coercion and on to conclude that the provision was not
duress, additionally, while I applicable, based on the lack of testimony
recognize my ability to regarding a factor that constitutes a
depart under 5 K 2 . 1 2 , prerequisite to its application. But, as
without threat of physical Minutoli correctly points out, such
i n j u ry resulting fro m testimony was presented. Accordingly, the
unlawful actions of a third sentence imposed “resulted from” an
party, which I don’t believe incorrect application of the Guidelines,
was in the testimony, or and we can review it pursuant to 18 U.S.C.
substantial da m age to § 3742(a)(2).
property resulting from
unlawful action of a third Thus, I disagree with the majority’s
party, the coercion and conclusion that we cannot review the
duress does not rise to the denial of a departure in a case such as this,
l e v e l th at w ar r a n ts where the District Court acknowledged its
departure. general power under the Guidelines but
then concluded that the case before it was
In finding that we lack jurisdiction, the not one in which a departure was
majo rity focuse s on th e Co urt’s authorized. In fact, I find a statutory
acknowledgment of its “ability to depart,” foundation, as well as a basis in our own
concluding that the denial in this case was jurisprudence, for reviewing the factual
discretionary. I, on the other hand, believe findings supporting such a conclusion for
that the District Court’s determination was clear error. Additionally, I derive
based on its erroneous factual finding that guidance and support for this view in the
10
well-reasoned decisions of some of our third party” caused the defendant to
sister courts of appeals that have commit the offense, but where the
confronted this issue. Based on my circumstances did not amount to a
reading of these cases, I conclude that we complete duress defense. The record
can, and should, assume jurisdiction over contained evidence that Minutoli’s
appeals like this one, involving allegations boyfriend threw a stereo at her, threatened
that the district court based its denial of a to kill her if she would not transport the
departure on clearly erroneous factual drugs, informed her that he would have her
findings. followed throughout her trip to Europe,
and intimidated her with a gun in their
I. bedroom the night before she left. Yet the
I will begin by reviewing the District Court ignored this evidence,
statutory basis for our jurisdiction over essentially saying that it was not there.
criminal appeals challenging sentencing
decisions, positing when and how we Therefore, our jurisdiction to
should exercise our jurisdiction in cases review this case is based on § 3742(a)(2).
involving denials of downward departures. This is because when a district court
Then, in Parts II and III, I will discuss the makes an erroneous factual finding that is
case law that supports this reasoning. relevant to its determination as to whether
the departure provision applies, the
Under 18 U.S.C. § 3742(a)(1) and sentence has necessarily been imposed as
(2), we are empowered to review sentences a result of an incorrect application of the
that are imposed “in violation of law” or Guidelines. Here, the District Court
“as a result of an incorrect application of incorrectly ignored evidence relevant to
the sentencing guidelines.” Minutoli does the application of the Guideline provision
not contend that her sentence violates any concerning coercion and duress. How can
law under (a)(1). Rather, she argues that the Guideline have been properly applied
the District Court incorrectly applied the in Minutoli’s case where the District Court
Sentencing Guidelines in that it clearly made an erroneous factual finding that
erred when it considered whether certain resulted in the Guideline’s not being
facts were present in order to qualify her applied at all, whereas a correct finding
for a departure under the pertinent could have rendered the coercion or duress
Guideline provision, specifically, whether departure provision applicable to her
the offense was caused by coercion or situation? Under the statutory review
duress as contemplated by § 5K2.12 of the authority contained in § 3742(a)(2), we
Guidelines. That provision notes that this have jurisdiction to monitor the District
departure is reserved for cases in which “a Court’s application of the Guidelines, and
threat of physical injury, substantial we should do so here.
damage to property or similar injury
resulting from the unlawful action of a The majority seeks to draw a bright
11
line between legal and factual errors, but This does not mean that all
such a distinction has no significance departure challenges are reviewable. For
when considering the statutorily-defined instance, § 3742(a) does not give us
bounds of our jurisdiction. The statutory jurisdiction to review in a case where a
power to review simply is not limited to defendant has succeeded in obtaining a
cases involving challenges to a district downward departure, but argues that the
court’s legal conclusions. Rather, we are departure should have been larger than it
to review if there appears either a violation was. There really is no correct or incorrect
of law or an incorrect application of the way to apply the Guidelines once a
Sentencing Guidelines. The statute does departure provision is deemed satisfied in
not limit our jurisdiction in situations of a particular case, and the district court
“incorrect application” in the way the clearly does have discretion to depart from
majority suggests; it does not remove from the relevant range to the degree it sees fit.
the scope of our review power situations in And, we cannot review a purely
which the incorrect application of the discretionary refusal to depart8 where the
Guidelines has occurred because of an
erroneous factual finding. The majority
would read such a caveat into the statute, considering the relevant provision. In
but it just is not there.7 order to correctly apply the Guidelines to
a given case, a district court must first
identify the proper provisions of the
Guidelines, and then it must consider the
7
At least some of the discord between applicability or “fit” of those provisions
the majority’s position and my own in light of the correctly-determined facts
seems to arise from our differing views of the case. In other words, the court
regarding what it means to “apply” the must find the facts correctly, then
Guidelines. The majority is correct that, correctly apply the appropriate Guideline
in some sense, the District Court here to those facts.
“applied” the Guidelines correctly,
8
insofar as it correctly identified the By “purely discretionary refusal to
relevant departure provisions, and depart” I mean a case in which the
properly understood the factors that a district court finds that the facts do
defendant must prove before a district satisfy the relevant Guideline provision,
court is free to consider granting a such that the court has the authority to
departure under that provision. depart in the particular case before it, but
However, beyond identifying the correct where the court exercises its discretion in
legal standards, I believe that the proper deciding not to grant the departure for
“application” of the Guidelines must also some other reason. An example of this,
include an accurate understanding of the based on a variation of the facts of this
facts that are pertinent to the analysis in case, would be a case in which the
which the court must engage when defendant presents significant evidence
12
district court’s view as to its legal power to the authority to depart in cases where the
depart under the Guidelines was correct – facts “fit” within one of the relevant
in other words, where the court correctly provisions, such as the provisions of
determines the relevant facts and applies Chapter 5 implicated in this case. Here,
the appropriate Guideline principles, but under § 5K2.12, the trial court only has the
declines to depart. See United States v. authority to depart downward if the
Ruiz, 536 U.S. 622, 627 (2002) (listing situation involves threats of physical injury
cases from every court of appeals reaching or substantial property damage, and if
this conclusion). Similarly, where a those threats caused the defendant to
district court does make a legal or factual commit the relevant offense. So where the
error, but nonetheless makes clear that the situation does not involve any threats of
sentence did not result from that error that sort, a district court does not have the
because, even if the departure provision power to invoke § 5K2.12 and depart
“fit,” the court would not be inclined to downward.
grant it, we could not exercise our power
of review. But we can, and should, review Here, the Court made a clearly
refusals to depart where the district court erroneous factual finding when it stated
makes an error in applying the Guidelines, that there was no testimony of physical
whether due to an erroneous factual threats or violence in the record. As noted
determination or a misapplication of law to above, both Minutoli and Dr. Bernstein
the facts, whereby the district court testified regarding various instances of
mistakenly concludes that it is without the threats and violence that occurred in the
specific authority to depart in the case days leading up to Minutoli’s trip. While
before it, and the sentence has been there might be legitimate reasons for
imposed as a result of that error. Such denying a departure in this case, even in
cases fall squarely within § 3742(a)(2). the face of these threats and acts of
violence, it appears as though the District
The Guidelines grant district courts Court ignored or forgot about this
testimony altogether and based its ruling
on the lack of such evidence.
Accordingly, we have jurisdiction to
of threats or physical violence, leading
review under § 3742(a)(2).
the district court to conclude that the
defendant qualifies for a departure under
The majority’s fear that a finding of
§ 5K2.12. In such a case, the court
jurisdiction here would force us to
would recognize its specific authority to
constantly review the merits of district
depart for that particular defendant, but
court rulings in order to determine our
could discretionarily refuse to do so
jurisdiction is unfounded. We are already
simply because the defendant seems like
in the business of doing so, to a certain
a “bad” person, or for any number of
extent, every time we examine a district
other reasons.
13
court’s sentencing ruling to decide whether necessarily have refused to depart, had it
it was an exercise of discretion or a legal properly perceived the facts or properly
determination regarding the court’s power understood the parameters of the
to depart or to apply a given Guideline Guidelines and how they should be applied
provision. Looking out for clearly in a given case. And in other cases, it is
e r r o n e o u s factual determinati o ns, clear from the record that the court felt
explicitly made by the sentencing court, in c o n s t ra i n e d b y t h e G u i d e li n e s,
order to be certain that the sentence did not misapprehending a lack of authority to
“result from” an incorrect application of depart, and it appears likely that the court
the Guidelines, is no more than a necessary would have departed, had it believed that
concomitant of our obligation to ensure it could do so. In these latter two
that we have jurisdiction where it is categories of cases, we must conclude that
precisely defined. And, we routinely do the sentence was imposed not as a result of
this in other types of cases as well. Cf. discretionary considerations, but rather as
Drakes v. Zimski, 240 F.3d 246, 247 (3d a result of an incorrect application of the
Cir. 2001) (holding that “we have Guidelines to the factual setting before the
jurisdiction to determine our jurisdiction” court. If a judge reasons that a factor
under a provision of the Immigration and necessary for departure is not present, but
Nationality Act that prevents our review of it either is present or is not a factor
appeals by aliens who are removable based necessary as a matter of law, how is
on aggravated felony convictions, and discretion exercised in making that
reviewing the facts presented to determine determination at all? The answer is simple
whether the petitioner’s crime was an – no discretion is exercised. Again, the
“aggravated felony”). statutory power of review requires that we
exercise our jurisdiction to review the
I suggest that, in order to determine sentence imposed on Minutoli as a result
whether we have jurisdiction to review the of an incorrect application of the
denial of a downward departure, we should Guidelines to the facts of her case.
ask the following question: if the District
Court had not made an erroneous factual II.
finding, would the result have been the The majority reads our court’s
same? If we can categorically answer precedents as clearly foreclosing review in
“yes,” then we are saying that the District cases like this one, and the Government
Court did not really care whether the facts strongly advocates that we are bound by
or the law “fit,” because the sentence was our precedent to find that we lack
imposed as a result of her decision not to jurisdiction here. I emphatically disagree
grant the departure in her discretion. In with that view. Although the case law
such a case, we are without jurisdiction to related to our appellate jurisdiction over
review. But in some cases, like this one, claims involving a district court’s denial of
we cannot tell whether the court would a defendant’s motion for a downward
14
departure is becoming increasingly challenge the result in Denardi in order to
confusing, I believe that a careful recognize that our decision there can (and
examination of the relevant decisions should) be read to support the view that we
actually supports a finding that we have have jurisdiction in the instant matter,
jurisdiction here. especially in light of our subsequent
decisions applying the rule we enunciated
The case that marks the starting there. As the majority described it, the
point for our jurisprudence in this area is scenario we considered in Denardi was not
United States v. Denardi, 892 F.2d 269 (3d one in which the District Court
Cir. 1990). In Denardi, a defendant misunderstood, based on a mistake about
appealed his sentence, arguing that his either the law or the facts, its legal
case involved certain mitigating factors authority to depart; rather, the Court was
that were not adequately considered by the empowered to grant a departure for that
Sentencing Commission in the Guidelines. defendant but elected not to do so. The
Id. at 270. We described the situation same has been true in many of our
before us as one where “the district court subsequent decisions applying Denardi.
did not misunderstand the law in applying
the sentencing guidelines,” and where the Since Denardi, we have been faced
court “had discretion to grant the with a multitude of appeals involving
[departure] request” but, “nevertheless, questions of our jurisdiction to review
refused to grant such relief.” Id. at 271.
On those facts, we held that we lack
appellate jurisdiction over an appeal that
the court’s decision, indicated his belief
“attacks the district court’s exercise of
that the majority decided a question that
discretion in refusing to reduce [a]
was not actually presented by that case.
sentence [ ] below the sen tencin g
See 892 F.2d at 272 (Becker, J.,
guidelines.” Id. at 272.
dissenting) (stating that the record shows
Although I admit to having some
that the district court “felt legally
doubt as to the soundness of certain
prohibited from departing,” while the
aspects of our reasoning in Denardi, as
majority decided “whether a
we ll as the accuracy of our
discretionary refusal to depart is
characterization of the District Court’s
appealable”). However, I will assume
statements there,9 it is not necessary to
here that the majority’s interpretation
was correct, and that the holding in
Denardi that we lacked jurisdiction is
9
Based on the portions of the District limited to situations in which a district
Court’s comments at the sentencing court in fact possesses and recognizes its
hearing that are quoted in the Denardi legal authority to depart on the facts
majority opinion, I am inclined to agree before it, but exercises its discretion in
with Judge Becker, who, dissenting from refusing to do so.
15
denials of requests for downward Only a fraction of these appeals have
departures in a variety of circumstances.10 resulted in precedential opinions of our
court,11 and, as I will discuss below, only
one of those opinions confronts a factual
10 scenario similar to the one presented by
For example, see United States v.
this case.
Gori, 324 F.3d 234, 239 (3d Cir. 2003)
(finding jurisdiction to review the denial
In addition to our own opinions
of a departure request based on the low
confronting this general issue, we are
quality of the drug involved); United
guided by the Supreme Court’s recent
States v. Dominguez, 296 F.3d 192, 194-
opinion commenting on the limits on
95 (3d Cir. 2002) (finding jurisdiction to
review the denial of a departure request
based on family circumstances); United offense).
States v. Castano-Vasquez, 266 F.3d
11
228, 231 (3d Cir. 2001) (finding I respectfully disagree with the
jurisdiction to review the denial of a majority’s explanation as to why many
departure request based on aberrant appeals raising issues related to our
behavior); United States v. McQuilkin, jurisdiction to review denials of
97 F.3d 723, 730 (3d Cir. 1996) (finding downward departures result in opinions
jurisdiction to review the denial of a that are not precedential. The majority
departure request based on physical asserts that this is due to the fact that
impairment); United States v. Mummert, “our law in this area is settled.” Maj. Op.
34 F.3d 201, 205 (3d Cir. 1994) at 6-7 n. 4. However, a perusal of just a
(remanding for clarification of the few of the host of not precedential
reasoning underlying the denial of a opinions on this subject reveals a trend of
departure); United States v. Love, 985 confusion and inconsistency. Compare,
F.2d 732, 734 n.3 (3d Cir. 1993) (finding e.g., United States v. Jackman, 2003 WL
jurisdiction to review the denial of a 21754978 (3d Cir. July 30, 2003) (not
departure request based on assistance to precedential) (reviewing for clear error a
state and local authorities); United States district court’s determination that the
v. Georgiadis, 933 F.2d 1219, 1224 (3d defendant’s mental problems were not
Cir. 1991) (finding no jurisdiction to sufficiently atypical to warrant a
review the denial of a departure where departure), with United States v. Love,
the record did not show that the court 2003 WL 21363404 (3d Cir. June 13,
failed to consider the request or 2003) (not precedential) (finding no
misunderstood its authority); United jurisdiction to review a district court’s
States v. Bierley, 922 F.2d 1061, 1066- determination that the conditions of the
67 (3d Cir. 1990) (finding jurisdiction to defendant’s pre-trial confinement were
review the denial of a departure request “not so harsh or inappropriate as to
based on the defendant’s role in the warrant a downward departure”).
16
appellate jurisdiction in cases involving error, McQuilkin, 97 F.3d at 730; 4) where
denials of departures. In Ruiz, the we cannot discern the basis for a district
Supreme Court stated that, while we do court’s refusal to depart, we will remand
not have jurisdiction “where the ground for clarification, Mummert, 34 F.3d at 205;
for appeal consists of a claim that the and 5) where it is clear that the sentence
district court abused its discretion in resulted from, or “rested on,” a district
refusing to depart,” we can review where court’s discretionary refusal to depart,
the district court’s “sentencing decision notwithstanding a factual or legal error, we
rested on a mistaken belief that it lacked do not have jurisdiction to review a claim
the legal power to grant a departure.” 536 based on that immaterial mistake, Ruiz,
U.S. at 627. This statement of the Court in 536 U.S. at 627. I think the majority
Ruiz does not imply any distinction based would not take issue with the first, second,
on whether the sentencing court’s and fourth of these “rules,” none of which
“mistaken belief” about its authority to directly impact this case. I will, therefore,
depart arises from a legal or factual error. focus exclusively on the third and the fifth,
Thus, I urge that it is controlling here. and I will explain how our court’s case law
leads me to find that such “rules” exist.
From the foregoing complicated set
of cases, I would posit that there are five The case that most clearly stands
basic “rules” that are fairly for the proposition that we can review for
straightforward: 1) where a district court clear error in a case like this one is
properly apprehends its authority to depart McQuilkin. There, in an opinion authored
in a given case, based on an accurate by now-Chief Judge Scirica, we found
perception of the facts and the law, we are jurisdiction and reviewed for clear error in
not empowered to review, Georgiadis, 933 a case that closely resembles the one
F.2d at 1222; 2) where a district court before us. 97 F.3d at 730. The departure
mistakenly concludes that it may not provision involved there was § 5H1.4,
depart in a given case, and its mistake is which allows a district court to depart
based on an incorrect understanding of the downward where the defendant puts forth
law or an improper interpretation of the evidence related to an extraordinary
Sentencing Guidelines’ dictates, we have physical impairment. Id. In finding that
jurisdiction to review the legal issues, and we had jurisdiction, we interpreted the
will do so de novo, Castano-Vasquez, 266 District Court’s sentencing decision as
F.3d at 229; 3) where a district court follows:
mistakenly concludes that it may not
depart in a given case, and its mistake is At sentencing, the district
based on an improper application of the court found M cQuilkin’s
Guidelines arising from a clearly condition was “not that type
erroneous determination of the facts, we of an impairment so severe
will review the factual findings for clear and complete that the
17
downward departure the defendant challenges as being
[was] . . . erroneous, that it cannot depart. None of
warranted.” The the cases finding that we lack jurisdiction
court’s determination pursuant to Denardi involve this precise
that McQuilkin did question. See, e.g., Georgiadis, 933 F.2d
not have the kind of at 1223 (stating that “the record does not
i m p a i r m e n t show the district court believed
described in § 5H1.4 erroneously it lacked authority to depart”).
which “warrants” a
departure could have The majority seeks to distinguish
meant one of two McQuilkin from the instant case, but it
things: that cannot truly do so in a way that is
M c Q uilkin’s meaningful. In McQuilkin, we were called
impairment was not upon to review a district court’s
extraordinary enough determination that McQuilkin’s physical
to allow the court to impairments were “not extraordinary
depart under the enough to allow the court to depart” at all
authority of § 5H1.4; under the relevant Guideline provision. 97
or that the nature of F.3d at 730. The defendant did not
the impairment was contend that the district court had applied
s u f f i c ie n tl y the incorrect Guideline provision or that it
extraord inary to had violated a federal statute; rather, he
allow the court to asserted that the district court’s factual
depart, but that the finding regarding the extent of his
court elected not to impairments, which rendered the relevant
depart on this Guideline provision inapplicable, was
occasion. We erroneous. The District Court determined
believe the court t h a t h is im p a ir m e n t s w e r e n ot
meant the former, in extraordinary enough to warrant a
w h i ch cas e, w e departure, and, on appeal, McQuilkin
review this finding argued that they were sufficiently
for clear error. extraordinary. McQuilkin has thus
established in the jurisprudence of our
McQuilkin, 97 F.3d at 730 (emphasis court that the seriousness of an
added). Importantly, McQuilkin appears impairment, or, here, the severity of
to be the only case in which our court has physical threats, is a factual finding that
ever considered whether and how we we review for clear error. How, then, can
should engage in our review in a scenario we say that a preliminary determination as
like this one, where the District Court to the existence of an impairment or threat
concludes, based on factual findings that is anything other than a factual finding that
18
we must review for clear error? Here, as we noted above, the
District Court essentially concluded that
The most striking flaw in the Minutoli failed to adduce evidence of the
majority’s attempt to distinguish type of threats necessary to support a
McQuilkin is its complete failure to finding that any duress or coercion in her
acknowledge the standard of review that case somehow rendered her situation
we applied there. We stated in McQuilkin, extraordinary enough to warrant a
clearly and simply, that “we [would] departure. This was erroneous. Applying
review [the challenged] finding for clear our own case law, then, leads to a finding
error.” Id. We obviously were not that we do have jurisdiction to review for
reviewing a purely legal conclusion, as the clear error under these circumstances.
majority contends, because our review was
for clear error, not de novo. Thus, we The majority seems inclined to
characterized the challenge brought before abruptly end its inquiry into the reasoning
us in McQuilkin as one directed at a of the District Court upon noticing its use
factual determination, rather than a pure of the phrase “while I recognize my ability
matter of law, but we did not hesitate to to depart.” However, our interpretation of
exercise our jurisdiction. The use of the the basis for the District Court’s decision
clear error standard confirms my view that cannot be this superficial. 12 The rest of the
McQuilkin dictates a finding that we have Court’s observations indicate that it
jurisdiction to review challenges to a actually concluded that the testimony
district court’s factual findings that offered by Minutoli would not support or
support a denial of a downward departure. authorize a departure under § 5K2.12 in
Given McQuilkin, we have jurisdiction to this case. Where a court determines that
second-guess a district court’s factual the preconditions for departing under a
finding regarding the extraordinary nature given provision of the Sentencing
of a defendant’s situation, essentially Guidelines are not satisfied, and where this
reviewing the court’s application of the determination has motivated the court in
Guidelines in the factual setting presented its sentencing decision, the subsequent
to us. How, then, can we not be
empowered to second-guess the court’s
finding regarding the presence or absence 12
The Government urged at oral
in the record of evidence offered by a
argument, and again by way of a
defendant where, as here, it led to an
supplemental letter brief filed after the
application of the Guideline in the factual
argument, that our precedents preclude
setting presented that was clearly
us from exercising jurisdiction in every
incorrect? Our statutory grant of
case where a district court uses this type
jurisdiction, in addition to our decision in
of standard language to reference its
McQuilkin, dictates that we must engage
“discretion” under the Guidelines. This
in such review.
position is simply incorrect.
19
denial cannot be an exercise of incorrect application of the Sentencing
“discretion.” The court is simply not Guidelines;” 2) “the refusal to depart
authorized to exercise its discretion in such otherwise violates the law;” or 3) “the
a case. Under these circumstances, I district court mistakenly believed that it
believe McQuilkin makes it clear that we lacked the discretion to depart.” Id. The
can review the underlying factual findings court also noted its “steadfast[] refus[al] to
for clear error, and, indeed, we are review denials of downward departures
obligated to do so. where the district court did not
misunderstand its legal authority to
III. depart.” Id. at 338. Summing up its
Finally, the majority has indicated position, the court stated: “An otherwise
that, after considering the divergent proper sentence is not a misapplication of
opinions of the Courts of Appeals for the the Sentencing Guidelines simply because
First and District of Columbia Circuits the district court, as a matter of discretion,
regarding the precise issue that we decide refuses to impose a lesser sentence than
here, it is persuaded to adopt the reasoning the law authorizes, even if its factual
expressed by the First Circuit in United reasons for doing so are mistaken.” Id. at
States v. Dewire, 271 F.3d 333 (1st Cir. 339. As a result, the court determined that
2001). In Dewire, the defendant had pled it lacked jurisdiction over Dewire’s appeal.
guilty to “using a means of interstate Id. at 340.
commerce to induce a minor to engage in
a sexual act.” Id. at 335. The district court But it would be wrong to conclude
denied his motion for a downward that the actual result in Dewire, given the
departure based on aberrant behavior. Id. facts presented there, is necessarily
On appeal, Dewire contended that the inconsistent with what I propose is the
court’s refusal to depart “was based on an proper analysis. Setting aside the broader
erroneous factual finding that he had holding of the First Circuit, I would agree
downloaded child pornography from the that Dewire’s sentence should have been
Internet.” Id. The First Circuit held that it affirmed based on the fifth “rule” I posited
lacked jurisdiction to review Dewire’s above. That is, Dewire provides an
claim related to the downward departure. excellent example of a case in which a
Id. fact-finding error was not material to the
In so concluding, the court sentencing decision, leaving us without
explained its view that there are three jurisdiction to review under § 3742(a)(2),
exceptions to the general rule that a district because the court’s sentencing discussion
court’s refusal to depart is discretionary actually indicated that its decision was not
and not appealable. Id. at 337. Those influenced by the finding that the
exceptions, describing cases in which defendant challenged on appeal. Id. at
review is permissible, are claims that: 1) 336. The trial judge explicitly stated at
“the refusal to depart [resulted from] an sentencing that even if the facts were to fit
20
within the relevant departure provision, he of departure for clear error on the language
would still not be inclined to depart due to of 18 U.S.C. §§ 3742(a)(2) and 3742(e).
the nature of Dewire’s offense. Id. In The court agreed that it would lack
such a case, I would agree that we do not jurisdiction in a case where the district
have jurisdiction to review because it is court “correctly understood the Sentencing
clear that the sentence did not result from Guidelines and the evidence, knew [it]
the allegedly mistaken factual finding. could depart, and yet decided to stick to
the Guideline range.” Id. at 1343.
The most relevant and persuasive However, the court also observed that,
opinion on the issue before us, dealing where “a district judge sticks to the
with a very similar factual and procedural Guideline range because he mistakenly
context, is the decision of the Court of believes he lacks authority to do otherwise,
Appeals for the District of Columbia in his sentencing decision is reviewable on
United States v. Sammoury, 74 F.3d 1341 appeal.” Id. at 1344. Because such a
(D.C. Cir. 1996). In Sammoury, the court situation exists where “clearly erroneous
concluded that it did have jurisdiction to factual mistakes [are] used in determining
review a challenge to the factual findings whether to depart,” the court concluded
underlying a sentencing decision. There, that § 3742(a)(2) provides a court of
the defendant had pled guilty to bank fraud appeals with the power to review
based on her misappropriation of funds challenges to the sentencing court’s factual
that were donated to her nonprofit findings. Id. at 1345. The court based this
employer. Id. at 1341. The district court conclusion on its interpretation of § 3742,
denied her motion seeking a downward as well as its view that “[i]t is no more an
departure based on coercion, duress, and infringement on the discretion of trial
diminished capacity due to abuse by her judges to set aside a sentence when the
husband. Id. On appeal, Sammoury refusal to depart rests on a clearly
asserted that the sentencing judge erroneous factual mistake than to set aside
misapprehended the evidence offered in a sentence when the refusal stems from a
support of the departure motion and misinterpretation of the Guidelines.” Id.
erroneously concluded that the abuse was Upon reaching this conclusion, the court
not the cause of Sammoury’s crime. Id. at went on to review the merits of
1343, 1346. After a lengthy discussion Sammoury’s claim, and it ultimately
regarding appellate jurisdiction over such determined that the district court’s findings
a claim, the D.C. Circuit determined that it were not clearly erroneous. Id. at 1346.
was empowered to review the sentence.
Id. at 1345. Given my reading of our precedents
described above, I believe that the D.C.
The Sammoury court based its Circuit’s opinion in Sammoury is quite
conclusion that it had jurisdiction to consistent with our jurisprudence and
review factual findings underlying a denial supp orts our review power here.
21
However, a review of the case law of the the Courts of Appeals for the D.C.,
other courts of appeals reveals that there is Second, Fifth, and Ninth Circuits have
probably a circuit split on the precise issue reviewed for clear error under similar
before us here.13 The Courts of Appeals circumstances. See Sammoury, 74 F.3d at
for the First and Fourth Circuits would 1343-45 (prov iding a n exte nsiv e
apparently dismiss this case based on a discussion of the statutory basis for
lack of appellate jurisdiction. See United reviewing findings of fact underlying a
States v. Underwood, 970 F.2d 1336 (4th denial of departure for clear error); United
Cir. 1992); United States v. Pierro, 32 F.3d States v. Ardoin, 19 F.3d 177, 181 (5th
611 (1st Cir. 1994).14 On the other hand, Cir. 1994) (“We review the findings of
fact under the ‘clearly erroneous’ standard,
13
but legal application of the Guidelines is
I say “probably” because there is a reviewed de novo.”); United States v.
lack of consistency in the reasoning of Mickens, 977 F.2d 69, 72 (2d Cir. 1992)
some courts, as noted infra in note 8. (reviewing the district court’s factual
Additionally, some courts, including our findings for clear error where the appeal
own in McQuilkin, have apparently challenged the denial of a downward
adopted a view with minimal discussion departure sought based on various
of the issue. mitigating circumstances); United States v.
14 Roe, 976 F.2d 1216, 1217 (9th Cir. 1992)
While Minutoli indicates that the
(“We review for clear error the [district]
Courts of Appeals for the Seventh and
court’s findin g that a partic ular
Eleventh Circuits would also find that
circumstance was not extraordinary”).
they lack jurisdiction in a case like this
one, I do not find that to be certain. The
I submit that our court is most
Court of Appeals for the First Circuit
properly aligned with the latter four
also notes cases from those courts of
circuits, in part because I find the
appeals in support of its position in
reasoning of those courts – and particularly
Dewire. 271 F.3d at 338 n.5 (citing
that of the District of Columbia Circuit in
United States v. Steels, 38 F.3d 350 (7th
Sammoury – to be more persuasive, but
Cir. 1994), and United States v.
also because I believe that our decision in
Patterson, 15 F.3d 169 (11th Cir. 1994)).
McQuilkin has already placed us on that
However, those cases did not involve
side of the issue. I further submit that the
allegations of clearly erroneous factual
findings; rather, the defendants in Steels
and Patterson apparently challenged the
district courts’ understanding of the yet been squarely presented with it.
relevant laws and Guideline provisions. Indeed, even the Dewire court noted
It thus remains unclear how those courts conflicting authority from the Seventh
would decide the jurisdictional question Circuit on this question. 271 F.3d at 338
presented in this case, as they have not n.5.
22
majority view parts company with discretionary call was actually made unless
McQuilkin and, as a result, runs afoul of it is clear from the record that the
our court’s Internal Operating Procedures, sentencing decision did not result from
§ 9.1. that determination. And where, as here,
the district court’s determination that it
IV. lacks authority is based upon a clearly
In light of the foregoing discussion, erroneous factual finding, we have
I cannot agree that we lack jurisdiction to jurisdiction to review and correct that error
consider Minutoli’s appeal. Where it is pursuant to both the relevant statute and
based on a plainly mistaken determination our own case law. The majority concludes
of the facts, a district court’s decision that otherwise and refuses to address the clear
a downward departure is not warranted or error in the factual findings underlying the
authorized under the Guidelines cannot be District Court’s sentencing decision here.
insulated from review. As I read the Therefore, I must respectfully dissent, and
relevant authority, there is neither a I strongly suggest that, in order for the
statutory nor a binding precedential majority’s view to stand, this case must be
mandate that we lack jurisdiction in such a addressed by the court en banc.
case. We should remain vigilant as we
examine and construe the language used
by the district courts in reaching
sentencing decisions, as the ramifications
have serious implications for criminal
defendants. Specifically, we must
carefully distinguish those situations in
which a district court would be authorized
to exercise its discretion from those in
which it is not actually empowered to do
so.
We cannot simply focus on a
court’s use of a magic phrase, such as “I
recognize that I have discretion under the
Guidelines,” and neglect to consider the
context in which such a statement is made.
The District Court here used such a
standard phrase as it noticed its general
authority under the Guidelines. But where,
as here, a district court proceeds to make a
determination that the requirements of a
given departure provision are not met in a
given case, we must conclude that no
23