In Re Sealed Case No. 98-3116

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 21, 1999 Decided December 28, 1999

In re: Sealed Case No. 98-3116

Appeal from the United States District Court

for the District of Columbia

(No. 97cr00183-01)

Neil H. Jaffee, Assistant Federal Public Defender, argued

the cause for appellant. With him on the briefs was A. J.

Kramer, Federal Public Defender.

Alyse Graham, Assistant U.S. Attorney, argued the cause

for appellee. With her on the brief were Wilma A. Lewis,

U.S. Attorney, and John R. Fisher, Mary-Patrice Brown and

Diana Harris Epps, Assistant U.S. Attorneys.

Before: Silberman, Sentelle and Rogers, Circuit Judges.

Opinion for the court filed by Circuit Judge Sentelle.

Dissenting opinion filed by Circuit Judge Rogers.

Sentelle, Circuit Judge: In 1997, appellant pleaded guilty

in the United States District Court to several counts of

cocaine possession and distribution in violation of 21 U.S.C.

s 841(a)(1) and (b)(1)(C). At sentencing, the trial court ran

all sentences on all counts concurrently and sentenced appel-

lant to 151 months. On appeal, appellant seeks a remand for

resentencing on the basis that the District Judge was un-

aware of his authority under s 4A1.3 of the United States

Sentencing Guidelines Manual ("Guidelines") to order a down-

ward departure from the career offender guideline range

assigned to appellant. While the judge's discourse on the

matter was less than clear, we hold that his comments should

not be interpreted as reflecting the view that he had no legal

authority to depart. Therefore, we affirm.

I. Background

On May 2, 1997, appellant pleaded guilty to one count of

unlawful possession with intent to distribute cocaine and six

counts of unlawful distribution of cocaine in violation of 21

U.S.C. s 841(a)(1) and (b)(1)(C). Based on the drug quantity

involved, the Presentence Report ("PSR") set the Guideline

base offense level at eighteen. Since appellant had been

convicted of two prior felony drug offenses, she qualified as a

career offender under s 4B1.1 and thus her offense level was

raised to thirty-two. However, her offense level was reduced

by three for acceptance of responsibility. Therefore, her final

offense level totaled twenty-nine.

Regarding appellant's two prior offenses, the PSR showed

that (1) the two offenses were committed within months of

each other; (2) the offenses occurred almost ten years prior

to the instant offenses; (3) the offenses involved very small

quantities of drugs; (4) appellant received a probationary

sentence on her second conviction; (5) appellant successfully

completed her parole and probation; (6) appellant sold drugs

to support her addiction rather than for financial gain; and

(7) appellant led a conviction-free and productive life during

the ten year period between her prior offenses and instant

offenses. Had appellant not been deemed a career offender,

her total offense level would have been fifteen (base eighteen

less three for acceptance of responsibility) and her sentencing

range would have been twenty-four to thirty months. How-

ever, since the court ruled that appellant's two prior convic-

tions qualified her as a career offender, her sentencing range

was 151-188 months.

Prior to sentencing, defense counsel filed objections to the

PSR. Counsel objected to the career offender adjustment on

the grounds that it did not "accurately reflect [appellant's]

criminal history, but artificially inflate[d] her record and

offense level." The probation officer rejected counsel's char-

acterization in an addendum to the PSR. In making his

objections, defense counsel did not raise any grounds for

departure specifically under s 4A1.3, the Guideline provision

cited on appeal, which allows for a sentencing departure when

"the court concludes that a defendant's criminal history cate-

gory significantly over-represents the seriousness of a defen-

dant's criminal history or the likelihood that the defendant

will commit further crimes." U.S. Sentencing Guidelines

Manual s 4A1.3 (1998).

At the sentencing hearing, the trial judge stated that he

"tentatively" agreed with the PSR. The judge also stated

that he was "tentatively" inclined to impose a sentence at the

bottom of the Guideline range and to run all sentences on all

counts concurrently. Defense counsel complained about the

harshness of the sentencing range in light of various mitigat-

ing factors, including appellant's age, drug addiction, period

of drug abstinence and gainful employment, and educational

background. In response, the judge stated:

I wish that there was some way I could give her a

sentence less than the guidelines call for. I am going to

sentence her at the bottom of the guidelines, but I am

convinced that she needs a long period of abstinence and

the treatment that she can get in the federal system.

After defense counsel reiterated his objection to the length of

the sentencing range, the judge responded, "I don't have any

alternative." The court proceeded to sentence appellant to

151 months, running all counts concurrently in order to reach

the bottom of the applicable range.

On appeal, appellant argues that her case must be remand-

ed for resentencing since the sentencing judge was unaware

that he had authority under s 4A1.3 to order a downward

departure from the career offender guideline range on the

grounds that appellant's criminal history significantly overre-

presented the seriousness of her prior convictions and the

likelihood she would commit future crimes. For the reasons

set forth more fully below, we reject appellant's contention

that the judge misunderstood his sentencing authority.

II. Discussion

A defendant can appeal a sentence issued under the Guide-

lines only if the sentence "(1) was imposed in violation of law;

(2) was imposed as a result of an incorrect application of the

sentencing guidelines; or (3) is greater than the sentence

specified in the applicable guideline range...." 18 U.S.C.

s 3742(a) (1994). Here, appellant argues that the District

Judge, as evidenced by certain statements in the record, was

not aware that he could enter a departure under s 4A1.3.

While this court will review a District Judge's refusal to

depart downward if the judge misconstrued his statutory

authority to depart, see, e.g., United States v. Beckham, 968

F.2d 47, 49, 53 (D.C. Cir. 1992); United States v. Ortez, 902

F.2d 61, 64 (D.C. Cir. 1990), we conclude that the District

Judge's comments during the sentencing hearing did not

amount to an assertion that he lacked the legal authority to

depart, especially as his comments were made in response to

defense counsel's general request for leniency and not in

response to a specific request for departure.

Although appellant's counsel filed written objections to the

criminal history guideline calculations contained in the PSR,

he did not specifically request a s 4A1.3 departure prior to

sentencing. In his letter, counsel objected on the grounds

that appellant's prior convictions did "not accurately reflect

her criminal history, but artificially inflate[d] her record and

offense level" because the two prior convictions should not

have been considered separately under s 4B1.2. Specifically,

counsel argued that "[t]he predicate offenses for which [the

probation officer] found defendant to be a 'career offender'

were 'related' according to s 4B1.2, Note 4 of the Sentencing

Guidelines ... and therefore [the predicate offenses] should

not be considered two separate and unrelated felonies pursu-

ant to s 4B1.2, Note 4." However, counsel's written objec-

tion does not aid appellant's current position since the objec-

tion pertained to the relatedness of the prior offenses and did

not touch upon s 4A1.3 departure authority. Moreover,

counsel never specifically argued for departure at the sen-

tencing hearing. Instead, counsel essentially asked the judge

for leniency when assigning the sentence.

Since counsel never specifically argued for this departure

from the appropriate guideline range before or during the

sentencing hearing, the District Judge's comments regarding

his sentencing authority must be evaluated in that context.

The First Circuit considered a similar record in United States

v. DeCosta, 37 F.3d 5, 8 (1st Cir. 1994). In that case, the

circuit court observed that a district court often "simply

asserts that it 'cannot' or 'is without authority' to depart."

Id. That circuit observed that a district court making such

an observation may be expressing the thought that it "can-

not" depart because it lacks legal authority under the Guide-

lines, or simply "that it 'cannot' depart" because it has

"weighed the factors urged and found that they do not

distinguish the case from the mine run of cases." Id. In

adopting the later view of the case before it and dismissing

the improvident appeal, that circuit noted that the failure of

the district court under review to discuss the factors as to

which the appellant thought it lacked understanding were

easily explained by the failure of the defense counsel at

sentencing to explicitly urge those factors as a basis for

departure. Just so here.

Thus, the critical question on appeal is whether the record

establishes that the district court judge misunderstood his

departure authority. See Ortez, 902 F.2d at 64. Granted, the

judge stated that he "wish[ed]" he could have sentenced

appellant below the guideline range but concluded that he did

not "have any alternative." However, the language used by

the judge is the kind of language that sentencing judges have

always used, even in the days of judicial sentencing discretion

unbridled by the Guidelines, to mean that the judge could not

in good conscience or with good judgment give as lenient a

sentence as requested by defense counsel. See United States

v. Smith, 27 F.3d 649, 665 (D.C. Cir. 1994) (Sentelle, J.,

dissenting) ("Sentencing judge[s] ... typically said something

like, 'Counsel, I'd like to give your client a lenient sentence,

but I just can't see any basis for it.' "). In making such a

statement, the judge does not mean that he could not lawfully

give the defendant a lenient sentence but rather that he

cannot do so in good conscience. Here, the District Judge's

statements are in accord with a sentencing judge's attempt to

"soften the blow" prior to his meting out justice. However,

we want to stress that sentencing judges should avoid using

the ambiguous language that gives rise to appeals like the one

before us. Justice is better served through clarity on the

record.

Our dissenting colleague charges that by upholding the

District Judge's decision on a record that contains ambiguity,

we somehow "abdicate[ ] our responsibility to determine our

own jurisdiction," and that our decision "is potentially un-

just." Dissent at 4-5. Of course, any decision is potentially

unjust. So far as abdicating our responsibility, however, it is

not clear to us how we do anything other than choose a

different decision than the one chosen by our colleague who,

we would hold, has applied the wrong standard of review.

Her chosen standard which finds reversible error on ambigui-

ty in the district court record where the ground of error

asserted on appeal was never raised is, on its face, inconsis-

tent first with United States v. Pinnick, 47 F.3d 434 (D.C.

Cir. 1995), wherein we held that a district judge's refusal to

depart without explanation was unreviewable where the ap-

pellant had not afforded the district court with the opportuni-

ty and occasion to explain on the record. As we held there,

"[u]nder these circumstances, we assume 'that the district

court kn[ew] and applie[d] the law correctly.' " Id. at 439

(quoting United States v. Garcia-Garcia, 927 F.2d 489, 491

(9th Cir. 1991)). Concededly, Pinnick involved a case with no

objection rather than one like the present where a different

objection was made, but it is not apparent from our col-

league's dissent why a different rule should apply. Secondly,

if a different rule does apply, then it would seem that at best,

the waived objection should be reviewed for plain error. See

United States v. Albritton, 75 F.3d 709, 712 (D.C. Cir. 1996).

To hold, as our colleague does, that a record at worst

ambiguous supports reversal is hardly consistent with plain

error review. Finally, the searching review that reverses for

an error not raised below on an ambiguous record is inconsis-

tent with the governing statute. In adopting Guideline sen-

tencing in the first place, Congress dictated that "[t]he court

of appeals shall ... give due deference to the district court's

application of the guidelines to the facts." 18 U.S.C.

s 3742(e). Our colleague's approach gives no deference at

all, in derogation of the obvious congressional desire to afford

stability and presumptive regularity to sentencing under the

Guidelines.

We further cannot agree with our colleague's styling of the

recorded colloquy between the court and the defendant as

"appear[ing] only to be consistent with the district court's

view that it was bound to sentence the defendant within the

Guideline range as enhanced by the career offender provi-

sion." Dissent at 3. Indeed, in explaining his sentence, the

District Judge stated, "I wish that there was some way I

could give her a sentence less than the Guidelines call for. I

am going to sentence her at the bottom of the Guidelines, but

I am convinced that she needs a long period of abstinence and

the treatment that she can get in the federal system." Un-

less the court was aware that he did have some possibility of

discretion, the second of the quoted sentences is unexplaina-

ble. If the district court misapprehended its authority, such

misapprehension is not apparent from the record. Guidelines

sentencing was intended by Congress to create stability and

presumptive regularity in sentencing, not to provide appellate

courts a chance to reverse on ambiguous records in which the

defense afforded the trial court no opportunity to pass on the

question asserted on appeal.

Conclusion

Reviewing the subject matter of defense counsel's objection

to the PSR and his generalized pleas for leniency at the

hearing together with the language used by the District

Judge, we cannot conclude that the judge expressed the view

that he had no legal authority to depart under the Guidelines.

The record demonstrates that the District Judge exercised

discretion rather than failed to consider his authority. As we

noted above, we have jurisdiction to review defense appeals

from sentencing only if the sentence "(1) was imposed in

violation of law; (2) was imposed as a result of an incorrect

application of the sentencing guidelines; or (3) is greater than

the sentence specified in the applicable guideline range...."

18 U.S.C. s 3742(a). As this appeal falls in none of those

categories, the appeal is hereby dismissed.

Rogers, Circuit Judge, dissenting: Although the court

labors to palliate the district court's statements, the effort

contravenes our precedent calling for a remand in circum-

stances such as these. The district judge stated "I don't have

any alternative" in response to defense counsel's argument

for a reduced sentence because the criminal history category

overstated the defendant's criminal history and because she

had a low likelihood of recidivism. Under unambiguous

circuit precedent, the district court had the "alternative" of

considering a downward departure under s 4A1.3. Because

the record is at best unclear as to whether the district court

was aware of its authority to depart, a remand is required.

See United States v. Beckham, 968 F.2d 47, 54-55 (D.C. Cir.

1992); United States v. Saro, 24 F.3d 283, 287-88 (D.C. Cir.

1994).

As the court recognizes, along with every other circuit that

has addressed the issue, this circuit has held that s 4A1.3

authorizes a downward departure when criminal history cate-

gory VI, assigned pursuant to the career criminal offender

guideline, significantly overrepresents the seriousness of the

defendant's past criminal conduct.1 In Beckham, the defen-

dant's sentence was tripled to 30 years to life because he had

been classified as a career offender on the basis of two prior

convictions, one for attempted possession with intent to dis-

tribute cocaine in 1988 and the other for armed robbery in

1975. The district court had rejected defense arguments that

the defendant's youth, family responsibilities, contrition, and

the grossly disproportionate nature of the penalty provided

authority to depart; defense counsel "complained about the

harshness of his sentence in general terms, but he disclaimed

knowledge of any specific authority in the Guidelines for

departing downward based on a mismatch between his sen-

__________

1 See, e.g., United States v. Spencer, 25 F.3d 1105, 1112-13

(D.C. Cir. 1994); United States v. Clark, 8 F.3d 839, 843 (D.C. Cir.

1993); Beckham, 968 F.2d at 54; see also United States v. Webb,

139 F.3d 1390, 1395 (11th Cir. 1998); United States v. Lindia, 82

F.3d 1154, 1165 (1st Cir. 1996); United States v. Rivers, 50 F.3d

1126, 1131 (2d Cir. 1995); United States v. Shoupe, 35 F.3d 835,

838-39 (3d Cir. 1994); United States v. Bowser, 941 F.2d 1019, 1023

(10th Cir. 1991); United States v. Adkins, 937 F.2d 947, 952 (4th

Cir. 1991); United States v. Lawrence, 916 F.2d 553, 554-55 (9th

tence and the seriousness of his misdeeds." Id. at 53. The

district court had observed that the sentence was harsh and

excessive but stated that it lacked any discretion in the

matter because "Congress and the Sentencing Commission

have taken that away from me." Id. This court, while noting

the narrow scope of the departure authority granted by

s 4A1.3, nevertheless remanded the case for resentencing

"because the district court was unaware that s 4A1.3 might

provide authority for a downward departure in a case like

Beckham's...." Id. at 55. Decisions from other circuits

likewise confirm the appropriateness of a remand to clarify

similar ambiguities at sentencing.2

The district court's language in the instant case is not as

expansive as it was in Beckham. The relevant portion of the

colloquy is as follows:

THE COURT: I wish that there was some way I could

give [the defendant] a sentence less than the Guidelines

call for. I am going to sentence [the defendant] at the

bottom of the Guidelines, but I am convinced that she

needs a long period of abstinence [from drug use] and

the treatment that [the defendant] can get in the federal

system.

[DEFENSE COUNSEL]: .... [After contending that

there is a low likelihood of recidivism] [W]hile I concur

with the Court that [the defendant] needs a lengthy or

[the defendant] needs some period of incarceration with a

program, I would not ask that it be lengthy. The bottom

end of the Guidelines are going to put [the defendant] up

at twelve or thirteen years.

THE COURT: I don't have any alternative.

__________

Cir. 1990); United States v. Brown, 985 F.2d 478, 482 (8th Cir.

1990).

2 For example, in United States v. Webb, 139 F.3d 1390 (11th

Cir. 1998), even after the district court concurred with the Assistant

United States Attorney's attempt "to make sure the record is clear

the court recognizes it has the authority to downwardly depart but

chose not to do so," id. at 1392, the Eleventh Circuit concluded that

the record was ambiguous and a remand was required. Id. at 1395.

To the same effect is United States v. Brown, 903 F.2d 540, 544-45

(8th Cir. 1990).

This colloquy and the district court's subsequent colloquy

with defense counsel appear only to be consistent with the

district court's view that it was bound to sentence the defen-

dant within the Guideline range as enhanced by the career

offender provision. This is not a case in which the district

court rejected a possible downward departure because it had

determined that the defendant's case was not one of the

exceptional cases that would fall within a downward depar-

ture provision of the Guidelines. Instead, the district court

used absolute language--"I don't have any alternative"--in

denying sentencing relief other than to sentence at the low

end of the range without a downward departure. When

viewed in context, the district court's statement does not

permit this court to conclude that the district court meant

either that in good conscience it had no alternative or that it

understood it had discretion under s 4A1.3 and chose not to

exercise it.3 That the district court also was interested in

assuring that the defendant had a long period of incarceration

in order to end her dependancy on drugs is not inconsistent

with a sentence that could be imposed after departing down-

ward, cf. Brown, 903 F.2d at 544, and the government does

not argue to the contrary.

__________

3 While the court is correct in noting that there are some cases

in which a district court's claimed inability to depart reflects a

recognition of departure authority accompanied by a judgment that

the facts are insufficiently unusual to trigger exercise of that

authority, this is not such a case. Here, the district court gave

every indication that it considered this to be a case worthy of a

departure but that it saw no route available to reach that result.

For this reason, the government's reliance on United States v.

Shark, 51 F.3d 1072, 1077 (D.C. Cir. 1995) (per curiam), is unavail-

ing because the court there found no ambiguity in the district

court's statement that it had no "leeway" to reduce a career

offender's sentence under s 4A1.3 once the district court had

rejected the defendant's arguments in support of his departure

motion. Similarly, the court's analogy to United States v. DeCosta,

37 F.3d 5 (1st Cir. 1994), goes astray. In DeCosta, the district

court sought briefing on its departure authority and expressed so

clear an understanding of its authority that its subsequent refer-

Moreover, viewing the record as the court does, its conces-

sion that the record is "ambiguous," see Majority Opinion

("Maj. Op.") at 7, as to whether the district court recognized

at the time it sentenced the defendant that s 4A1.3 "might

provide authority for a downward departure" cannot be rec-

onciled with its decision not to remand this case. Until today,

the court had followed or acted consistently with the majority

rule: "[i]f it cannot be determined whether the sentencing

court exercised its discretion or wrongly believed it could not

depart, the case will be remanded." Jefri Wood, Federal

Judicial Center, Guideline Sentencing: An Outline of Appel-

late Case Law On Selected Issues 303 (1998).4 However, two

circuits have evinced a willingness to depart from this rule.

See United States v. Fortier, 180 F.3d 1217, 1231 (10th Cir.

1999); see also United States v. Byrd, 53 F.3d 144, 145 (6th

Cir. 1995). By essentially adopting the minority view as its

holding, the court misconceives the inquiry. The court recog-

nizes that our jurisdiction in this case turns on the merits,

that is, whether "the record establishes that the district court

judge misunderstood his departure authority." See Maj. Op.

at 5. But where the record is ambiguous, this court is unable

to determine whether the district court's decision is reviewa-

ble legal error or an unreviewable exercise of discretion. A

rule that resolves the ambiguity against the defendant abdi-

__________

ence to lacking the "discretion" to depart did not create an ambigui-

ty. Id. at 8.

4 See, e.g., United States v. Spencer, 25 F.3d 1105, 1113 (D.C.

Cir. 1994); Beckham, 968 F.2d at 53; United States v. Barry, 938

F.2d 1327, 1330-32 (D.C. Cir. 1991); United States v. Baskin, 886

F.2d 383, 389-90 (D.C. Cir. 1989); cf. United States v. Harris, 959

F.2d 246, 264-65 (D.C. Cir. 1992); United States v. Molina, 952

F.2d 514, 520 (D.C. Cir. 1992); United States v. Lopez, 938 F.2d

1293, 1298 (D.C. Cir. 1991) (citing United States v. Deigert, 916 F.2d

916, 918-19 (4th Cir. 1990)); United States v. Lyons, 706 F.2d 321,

335 & n.25 (D.C. Cir. 1983). For cases from other circuits, see, e.g.,

United States v. Webb, 139 F.3d 1390, 1395 (11th Cir. 1998); United

States v. Mummert, 34 F.3d 201, 205 (3d Cir. 1994); United States

v. Brown, 985 F.2d 478, 491 (9th Cir. 1993); United States v.

Ritchey, 949 F.2d 61, 63 (2d Cir. 1991); United States v. Deigert,

916 F.2d 916, 919 (4th Cir. 1990); see also United States v. Ramos-

Oseguera, 120 F.3d 1028, 1040-41 (9th Cir. 1997), cert. denied, 118

S. Ct. 1094 (1998).

cates our responsibility to determine our own jurisdiction and

is potentially unjust: "a defendant whose departure request

is rejected with an ambiguous ruling based on legal grounds

would apparently be deprived of the appellate review to which

he is statutorily entitled." Mummert, 34 F.3d at 205 n.2;

accord United States v. Clark, 128 F.3d 122, 124 (2d Cir.

1997); cf. Koon v. United States, 518 U.S. 81, 100 (1996);

United States v. Leandre, 132 F.3d 796, 800 (D.C. Cir. 1998).

The court mischaracterizes the majority rule as one that

treats ambiguity as "reversible error." Maj. Op. at 6. Rath-

er, the rule is designed to aid the court's jurisdictional inquiry

by allowing the district court to clarify on resentencing

whether its decision not to depart falls into the class of such

decisions subject to our review under 18 U.S.C. s 3742.

Contrary to the court's statement, our prior decisions have

recognized that a remand to clarify an ambiguous record is

consistent with our decision in United States v. Pinnick, 47

F.3d 434 (D.C. Cir. 1995), which presumes, in the absence of

record evidence indicating otherwise, that a district court's

refusal to depart is for discretionary reasons. See, e.g.,

United States v. Graham, 83 F.3d 1466, 1481 (D.C. Cir. 1996);

see also United States v. Chase, 174 F.3d 1193, 1195 (11th Cir.

1999). The instant case falls outside the Pinnick presumption

because the district court's statement--"I don't have any

alternative"--is precisely the sort of record evidence that

raises an ambiguity about the district court's grounds for

decision, triggering application of the rule requiring a re-

mand.

An additionally troubling aspect to the court's resolution of

the ambiguity is its assumption that the district court was

insincere when expressing its "wish that there was some way

[it] could give [the defendant] a sentence less than the

Guidelines call for." Maj. Op. 3. Even assuming that this

language could be understood to have been intended only to

"soften the blow," it is at least equally possible that the

district court meant what it said. By resolving this ambiguity

against the defendant, the court also deprives the district

court of the opportunity to consider and explain clearly

whether a departure under s 4A1.3 was warranted in the

instant case. Cf. United States v. Rivers, 50 F.3d 1126, 1132

(2d Cir. 1995).

Of course counsel share some responsibility for any ambi-

guity in the record. Directing the district court's attention to

the precise relief sought under the specific Guideline would

avoid future ambiguity. Not only could defense counsel have

been more specific, the prosecutor also could have sought

clarification of the district court's ruling. But after Beckham,

it is clear that no magic words are required, not even the

invocation of the phrase "downward departure." In Beck-

ham, defense counsel's arguments for a lesser sentence were

unavailing. So too, here, counsel's argument that the defen-

dant's two prior convictions should be viewed as related was

unavailing. In Beckham, defense counsel neither referred to

s 4A1.3 nor, as here, invoked language of its commentary.

Indeed, defense counsel in Beckham disclaimed the possibility

of other relief under the Guidelines.

Still, counsel's argument here adequately preserved the

defendant's right to review. Counsel objected to application

of the career offender enhancement because Criminal History

Category VI "do[es] not accurately reflect the defendant's

actual criminal history but artificially inflate[s] her record and

offense level." Elaborating that the career offender provision

did not apply because the defendant's two prior drug convic-

tions should be treated as related, counsel's invocation of

"artificial[ ] inflat[ion]" of the defendant's criminal record

closely tracks s 4A1.3's authorization of a departure when the

"defendant's criminal history category significantly over-

represents the seriousness of a defendant's criminal histo-

ry...." U.S. Sentencing Guidelines Manual s 4A1.3 (1997).

While admittedly inartful, defense counsel's objection suffi-

ciently placed the district court on notice that resort to its

discretion under s 4A1.3 was being sought. Nothing like this

happened in Pinnick, 47 F.3d at 439, where counsel failed to

object at all to the district court's denial of his request for a

departure. If defense counsel's argument here had been

limited to whether the career offender provision could be

applied to the defendant as a matter of law, counsel's objec-

tion to Category VI failing to "accurately reflect" the defen-

dant's true criminal history would have been irrelevant. Cf.

DeCosta, 37 F.3d at 8. Similarly, defense counsel raised the

other ground for a s 4A1.3 departure--the unlikelihood of

recidivism--when arguing that the bottom of the Guidelines

range was too long. In the absence of s 4A1.3, that argu-

ment also would have been irrelevant.5 Thus, even in the

absence of our decision in Beckham, defense counsel's argu-

ment was sufficient to alert the district court that a down-

ward departure was being requested.

Had the defendant waived her objection to the district

court's failure to depart, I would agree with the court that

plain error review remains for a waived objection. Maj. Op.

at 6; see United States v. Albritton, 75 F.3d 709, 714 (D.C.

Cir. 1996) (Rogers, J., concurring). But the court fails to

heed the instruction in Saro that in matters of sentencing,

even under plain error review, it is important to be certain

that the district court understood its authority and, as appro-

priate, exercised its discretion under that authority. 24 F.3d

at 288. Where a district court states that it has no alterna-

tive to imposing the lowest sentence based on a criminal

history category VI, in response to defense counsel's argu-

ment for a sentence that does not so overstate the defendant's

prior criminal record, this court needs to be clear that the

district court understood that s 4A1.3 "might provide author-

ity" for a lesser sentence. Beckham, 968 F.2d at 55. Accord-

ingly, because the systemic costs of a remand for resentenc-

ing do not outweigh (and the government does not argue to

the contrary) the criminal justice system's interest in assur-

ing correct application of the Guidelines, I would remand the

case in accord with circuit precedent to allow the district

court to consider whether to grant a downward departure

under s 4A1.3.

__________

5 The court characterizes counsel's argument against the low

end of the guideline range as a plea for "leniency," Maj. Op. at 4,

without acknowledging that because the district court had previous-

ly announced its intent to sentence at the low end of the range the

only possible exercise of leniency left to the court would have been a

downward departure under s 4A1.3.