United States v. Riley, Chrisopher

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United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 30, 2004 Decided August 3, 2004

No. 03-3118

UNITED STATES OF AMERICA,

APPELLANT

v.

CHRISTOPHER E. RILEY,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 02cr00314–01)

Valinda Jones, Assistant U.S. Attorney, argued the cause

for appellant. With her on the briefs were Roscoe C. How-

ard, Jr., U.S. Attorney, and John R. Fisher, Assistant U.S.

Attorney. Thomas J. Tourish, Jr., Assistant U.S. Attorney,

entered an appearance.

Bills of costs must be filed within 14 days after entry of judgment.

The court looks with disfavor upon motions to file bills of costs out

of time.

2

David W. Bos, Assistant Federal Public Defender, argued

the cause for appellee. With him on the brief was A. J.

Kramer, Federal Public Defender.

Before: ROGERS, TATEL, and GARLAND, Circuit Judges.

Opinion for the Court filed by Circuit Judge GARLAND.

Opinion concurring in part and dissenting in part filed by

Circuit Judge ROGERS.

GARLAND, Circuit Judge: The United States appeals from a

judgment of the United States District Court, granting defen-

dant Christopher Riley a downward departure from the sen-

tence required by the United States Sentencing Guidelines.

Reviewing the judgment de novo, we hold that the departure

was improper and remand the case for resentencing.

I

On April 24, 2003, Riley pled guilty to a federal grand

jury’s superceding indictment charging him with one count of

possession of a firearm and ammunition by a convicted felon,

in violation of 18 U.S.C. § 922(g)(1). Riley did not enter into

a plea agreement with the government or otherwise stipulate

in writing to the facts of his crime. The relevant events are,

however, partially chronicled in a government proffer offered

at the plea hearing, with which the defendant said he agreed.

04/24/03 Tr. 11–13. They are also chronicled in a Presentence

Investigation Report (PSR) prepared by the United States

Probation Office, which the defendant agreed contained no

material inaccuracies. The following recitation begins with

information from these sources.

At approximately 6:45 on the morning of May 7, 2002, a

Special Agent of the Federal Bureau of Investigation (FBI)

was on his way to an FBI field office in downtown Washing-

ton, D.C., when he noticed a brown Chevrolet Suburban

automobile parked directly across the street from the field

office. The car, which bore Maryland license plates, had two

large antennae, a Fraternal Order of Police sticker on the

back window, a red light, and a Metropolitan Police Depart-

ment (MPD) placard on the dashboard. Riley was inside the

car. The FBI agent stopped, called the FBI Communications

3

Center to check the car’s license plates and, while waiting for

a response, observed Riley get out of the car and walk toward

a building. After being advised that the car had been report-

ed stolen, the agent approached the building as Riley came

out. The agent asked Riley if he was the car’s owner, and

Riley said that he was.

The FBI agent then asked Riley if he had any weapons;

Riley said that he did. A search of his person revealed a

fully-loaded, semi-automatic handgun in a holster on his hip.

Riley then told the agent that he was an MPD chaplain and

produced a Police Department identification card and badge.

He admitted that he was not a sworn police officer and that

he did not have a permit to carry a gun in the District. He

did claim, however, to have a permit to carry the gun in

Maryland. (Riley’s counsel repeated that claim at the plea

hearing.) As for the car, Riley explained that he had just

purchased it from a friend, and immediately called the friend

to confirm for the agent that a sale had transpired. Mean-

while, MPD officers arrived on the scene and arrested Riley.

The PSR reviewed Riley’s criminal history and offense

level under the Sentencing Guidelines. It noted that Riley

had been convicted in 1989 in Virginia federal court for

transporting a firearm across state lines while under felony

indictment, in violation of 18 U.S.C. § 922(n). That convic-

tion was the predicate offense for the § 922(g)(1) charge.

The PSR also noted that Riley had several other prior

convictions.1 Because all of Riley’s convictions were more

than 10 years old and none involved more than 13 months’

imprisonment, the PSR assigned him zero criminal history

points, yielding the lowest criminal history category of I.

PSR ¶¶ 27–32; see U.S. SENTENCING GUIDELINES MANUAL

§ 4A1.2(e) (2002) [hereinafter U.S.S.G.]. The PSR also calcu-

lated a base offense level of 14 under U.S.S.G.

1Those included bank fraud (by using a false identification card),

which was the underlying felony for the § 922(n) offense; a 1989

District of Columbia conviction for possessing a prohibited weapon;

other D.C. convictions for possessing a false identification document

with intent to defraud, and for theft of stolen property; and a 1990

Virginia conviction for impersonating a police officer.

4

§ 2K2.1(a)(6)(A) — the guideline applicable to violations of

§ 922 — and reduced it by two levels for acceptance of

responsibility. PSR ¶¶ 16–25.

Riley’s criminal history category and offense level generat-

ed a guidelines sentencing range of 10 to 16 months’ impris-

onment. See PSR ¶ 72 (citing U.S.S.G. ch. 5, pt. A (1992)).

As the PSR reported, that range rendered Riley ineligible for

probation. Id. ¶ 10; see U.S.S.G. § 5B1.1, cmt. n.2; id.

§ 5C1.1(f). The Probation Office reported that it had re-

ceived no information that would justify a departure from the

guidelines range. PSR ¶ 84.

In a written motion to the district court, filed two days

before the sentencing hearing, Riley asserted that there was

more to the story than was reflected in the plea hearing and

PSR. See Def.’s Mot. for Downward Departure [hereinafter

Motion]. He contended that, on the evening of May 6, 2002,

he had delivered an invocation at an annual memorial service

for law enforcement officers. He then participated in a ‘‘ride-

along’’ with an MPD officer, and eventually accompanied that

officer to a 24–hour shooting range in Maryland. In the

morning, he drove directly to work from the shooting range.

According to Riley, he was a switching engineer employed as

a ‘‘Verizon Federal Contractor’’ and assigned to work at an

office of the Bureau of Alcohol, Tobacco and Firearms (ATF)

near where he was intercepted by the agent. Had it not been

for his arrest, he said, he ‘‘would have secured the weapon at

the ATF office upon his arrival.’’ Id.

Based on this account of his offense conduct, Riley asked

the court to depart downward four offense levels so that he

could be sentenced to three years’ probation. He made this

motion pursuant to two provisions of the guidelines manual:

U.S.S.G. § 5K2.11, which authorizes a departure if the defen-

dant’s conduct did not threaten the harm sought to be

prevented by his statutory offense; and U.S.S.G. § 5K2.0,

which authorizes a departure if circumstances distinguish a

defendant’s conduct from the ‘‘heartland’’ of offenses covered

by the applicable offense guideline. The government re-

sponded orally at the hearing. The prosecutor did not ad-

5

dress the truth of Riley’s factual claims, but contended that

they did not justify departure.

At the sentencing hearing on August 29, 2003, the district

court granted Riley’s motion for a four-level departure and

sentenced him to three years’ probation. Noting that Riley

was ‘‘gainfully employed,’’ the court said:

He hasn’t done anything wrong since 1989. He supports

his children or tries to support his children. He seems

to me to be an ideal candidate for probation, and I see no

point at all in sending him to prison at this point. I am

going to grant the Motion for Departure, and you can put

me on Mr. Ashcroft’s list.

08/29/03 Tr. 6. Although the court also said that the sentenc-

ing issue was ‘‘the reason for which he possessed the weap-

on,’’ id. at 5, it made no mention of the circumstances of

Riley’s arrest or of his representations regarding the shooting

range. The court later noted on its judgment order that it

departed downward ‘‘Upon motion of defendant — §§ 5K.2

and 5K.11 [sic],’’ and checked a box indicating that it adopted

the factual findings in the PSR. The government contends

that the record does not support a downward departure

under either U.S.S.G. § 5K2.0 or § 5K2.11.

II

Our standard of review of decisions to depart from an

otherwise applicable guidelines range has recently changed.

Previously, pursuant to 18 U.S.C. § 3742(e), we reviewed a

district court’s factual findings for clear error and its decision

to depart from the guidelines for abuse of discretion. See

Koon v. United States, 518 U.S. 81, 97–99 (1996). In 2003,

however, Congress amended § 3742(e) in § 401(d) of the

Prosecutorial Remedies and Tools Against the Exploitation of

Children Today Act (PROTECT Act), Pub. L. No. 108–21, 117

Stat. 650 (Apr. 30, 2003). Although courts of appeals must

still ‘‘accept the findings of fact of the district court unless

they are clearly erroneous,’’ we must now review a district

court’s decision to depart from the guideline range ‘‘de novo.’’

18 U.S.C. § 3742(e); see United States v. Mallon, 345 F.3d

6

943, 946 (7th Cir. 2003).2 Those circuits that have decided the

issue have held that the judicial review provision of the

PROTECT Act applies with immediate effect, and without

constitutional disability, to appellate proceedings after April

30, 2003, the date the PROTECT Act was signed into law.3

Today, we join them.

Although the PROTECT Act became law five months

before Riley filed this appeal and four months before he was

sentenced, the conduct for which he was convicted had taken

place a year earlier. Riley argues that applying the Act’s de

novo standard to review sentences for crimes committed

before April 30, 2003 would violate the presumption against

the retroactive application of statutes. See, e.g., Landgraf v.

USI Film Prods., 511 U.S. 244, 268 (1994). But a ‘‘statute

does not operate ‘retrospectively’ merely because it is applied

in a case arising from conduct antedating the statute’s enact-

ment.’’ Id. at 269. Rather, to determine retroactive effect,

‘‘the court must ask whether the new provision attaches new

2 Specifically, we review ‘‘de novo the district court’s application

of the guidelines to the facts,’’ to determine whether ‘‘the sentence

departs from the applicable guideline range based on a factor

that — (i) does not advance the objectives set forth in section

3553(a)(2); or (ii) is not authorized under section 3553(b); or (iii) is

not justified by the facts of the case.’’ 18 U.S.C. § 3742(e) &

(e)(3)(B). We continue, however, to ‘‘give due deference to the

district court’s application of the guidelines to the facts’’ in deter-

mining whether a sentence departs from the applicable guidelines

range ‘‘to an unreasonable degree.’’ Id. § 3742(e) & (e)(3)(C).

3See United States v. Frazier, 340 F.3d 5, 14 (1st Cir. 2003);

United States v. Kostakis, 364 F.3d 45, 47 (2d Cir. 2004); United

States v. Stockton, 349 F.3d 755, 764 & n.4 (4th Cir. 2003); United

States v. Bell, 371 F.3d 239, 241–42 (5th Cir. 2004); United States v.

Mallon, 345 F.3d 943, 946 (7th Cir. 2003); United States v. Hut-

man, 339 F.3d 773, 775 (8th Cir. 2003); United States v. Daychild,

357 F.3d 1082, 1106 (9th Cir. 2004); United States v. Lang, 364

F.3d 1210, 1214 n.1 (10th Cir. 2004); United States v. Kim, 364 F.3d

1235, 1240 n.3 (11th Cir. 2004); see also United States v. D’Amario,

350 F.3d 348, 356 (3d Cir. 2003) (finding it unnecessary to decide

which standard of review to apply).

7

legal consequences to events completed before enactment.’’

Id. at 269–70. The de novo review provision at issue here

does not change the consequences of Riley’s unlawful acts.

As the Seventh Circuit has explained, the provision:

TTT does not change the statutory penalties for crime,

affect the calculation of the Guidelines range, or alter the

circumstances under which departures are permitted. It

changes who within the federal judiciary makes a partic-

ular decision, but not the legal standards for that deci-

sion. Instead of one district judge, three appellate

judges now decide whether a departure is justified.

Mallon, 345 F.3d at 946. In this respect, the provision is like

‘‘a new jurisdictional rule,’’ which ‘‘takes away no substantive

right but simply changes the tribunal that is to hear the

case.’’ Landgraf, 511 U.S. at 274. In such circumstances,

‘‘[p]resent law normally governs.’’ Id.

Riley also contends that applying the PROTECT Act would

violate the Constitution’s Ex Post Facto Clause, U.S. CONST.

Art. I, § 9, cl. 3, ‘‘because the Act is punitive in nature.’’

Appellee’s Br. at 17; see Smith v. Doe, 538 U.S. 84, 92 (2003)

(‘‘If the intention of the legislature was to impose punishment,

that ends the [Ex Post Facto] inquiry.’’). But there is

nothing — and Riley does not contend that there is any-

thing — punitive about the Act’s new standard of appellate

review. Instead, he contends that the Act is punitive when

‘‘considered as a whole,’’ Appellee’s Br. at 17, referring to the

Act’s ‘‘substantive’’ as well as procedural provisions, id. at 18.

Riley is presumably alluding to sections of the Act that

impose new or increased criminal penalties for specified

conduct. See, e.g., 18 U.S.C. § 2251(e) (increased penalty for

sexual exploitation of children); id. § 3553(b)(2) (new sen-

tencing rules for defendants convicted of ‘‘[c]hild crimes and

sexual offenses’’). Riley, however, has no standing to com-

plain about provisions that do not apply to him, and those

sections therefore do not affect our analysis here.4

4The cases Riley cites for the proposition that a statute must be

examined as a whole to determine whether it is punitive are

8

Finally, Riley draws our attention to two other new provi-

sions of the PROTECT Act that he contends make it unfair to

apply any part of the Act to him. First, a district court’s

reasons for departing from a guidelines range must now ‘‘be

stated with specificity in the written order of judgment and

commitment,’’ 18 U.S.C. § 3553(c)(2), putting a greater pre-

mium on factfinding than perhaps the district judge realized.

Although the prior statute had also required the court to

state ‘‘the specific reason’’ for a departure, the reason had to

be stated only ‘‘in open court.’’ See id. § 3553(c) (2000)

(amended at 18 U.S.C. § 3553(c) (2004)). This difference has

no consequence here, however, because even treating the

court’s oral statements as if they had been written, and even

accepting the defendant’s version of the facts, we conclude in

Parts III–V that the departure was unwarranted.

Second, Riley notes the PROTECT Act provides that, if an

appellate court remands for resentencing, the district court

may not impose a sentence outside the applicable guidelines

range:

except upon a ground that — (A) was specifically and

affirmatively included in the written statement of reasons

required by section 3553(c) in connection with the previ-

ous sentencing of the defendant TTT; and (B) was held by

the court of appeals, in remanding the case, to be a

permissible ground of departure.

18 U.S.C. § 3742(g)(2). Riley worries that this provision

could unfairly deprive him of the right to raise additional

grounds that he has since identified to support his reduced

sentence. Again, this provision has no consequence here. As

discussed in Part V, we have considered the additional

grounds that Riley proposes, including those arguably raised

inapposite, as they undertook such examinations only to determine

whether individual statutory provisions were truly more onerous

than their predecessors. See, e.g., Dobbert v. Florida, 432 U.S. 282,

294 (1997); United States v. Shorty, 159 F.3d 312, 317 (7th Cir.

1998). There is nothing in the substantive provisions of the PRO-

TECT Act that would shed such light on the de novo review

provision.

9

for the first time on appeal, and conclude that none justifies

the sentence pronounced by the district court.

III

The first ground for departure upon which the district

court relied, U.S.S.G. § 5K2.11, is entitled ‘‘Lesser Harms’’

and permits a downward departure if the defendant’s conduct

did ‘‘not cause or threaten the harm or evil sought to be

prevented by the law proscribing the offense at issue.’’5

Riley asserts that the harm sought to be prevented by

§ 922(g)(1) is the possession of a firearm for an unlawful

purpose, and that because he had no unlawful purpose, he is

eligible for departure under § 5K2.11.

Section 922(g), however, sweeps more broadly than Riley

admits, drawing the criminal line at possession, not purpose.

The statute declares it flatly ‘‘unlawful for any [prohibited]

person TTT to ship or transport in interstate or foreign

commerce, or possess in or affecting commerce, any firearm

or ammunition,’’ 18 U.S.C. § 922(g), and includes felons on

the list of prohibited persons, see id. § 922(g)(1). To commit

the crime, the felon need only possess the gun ‘‘knowingly.’’

Id. § 924(a)(2). As the Supreme Court has repeatedly noted,

the federal laws that bar felons from possessing firearms

have ‘‘a broad prophylactic purpose.’’ Dickerson v. New

Banner Inst., 460 U.S. 103, 118 (1983) (describing the purpose

of Title IV of the Gun Control Act of 1968, a predecessor of

18 U.S.C. § 922(g)).6 And while there certainly are statutory

5Section 5K2.11 also articulates a second theory of ‘‘lesser

harms,’’ permitting a district court to depart downward if the

defendant committed the crime ‘‘to avoid perceived greater harm.’’

U.S.S.G. § 5K2.11. That theory is not at issue here.

6 See, e.g., Lewis v. United States, 445 U.S. 55, 63 (1980) (holding

that former felon-in-possession statute, 18 U.S.C. § 1202, ‘‘was a

sweeping prophylaxis, in simple terms, against misuse of firearms’’);

Huddleston v. United States, 415 U.S. 814, 824 (1974) (explaining,

with respect to Title IV, that the ‘‘principal purpose of federal gun

control legislation TTT was to curb crime by keeping firearms out of

the hands of those not legally entitled to possess them because of

10

provisions that are concerned with the defendant’s purpose in

possessing the firearm, see, e.g., 18 U.S.C. § 924(c) (prohibit-

ing using or carrying a firearm during and in relation to a

crime of violence or drug trafficking offense, or possessing a

firearm in furtherance of any such crime), § 922(g)(1) is not

one of them.7 Accordingly, the mere absence of an unlawful

purpose does not warrant a departure under § 5K2.11.

Riley notes that § 5K2.11 provides two examples of situa-

tions in which a departure might be warranted because the

defendant’s conduct does not threaten the evil sought to be

proscribed by the statute, and he contends that those exam-

ples counsel a departure in his case. The examples are

‘‘where a war veteran possessed a machine gun or grenade as

a trophy, or a school teacher possessed controlled substances

for display in a drug education program.’’ U.S.S.G. § 5K2.11.

Tellingly, however, neither example involves a statutory bar

on possession by a prohibited person; rather, each involves a

ban on a particular object because of concern over how that

object might be used. The same is true of the two cases that

Riley cites involving departures where the defendant violated

26 U.S.C. § 5861, which prohibits the possession of certain

unregistered, sawed-off firearms.8

age, criminal background, or incompetency’’) (internal citation and

quotation marks omitted); see also cases cited infra note 7.

7 See United States v. Cutright, 2000 WL 1663451, at *4 (4th Cir.

2000) (unpublished op.) (‘‘[A] conviction under § 922(g) focuses on

the defendant’s status as a convicted felon, not on the reason for

possessing a firearm.’’); United States v. Reynolds, 215 F.3d 1210,

1214 (11th Cir. 2000) (stating that § 922(g) does not ‘‘focus on the

motive or purpose of the current possession of the firearms’’);

United States v. Prator, 939 F.2d 844, 846 (9th Cir. 1991) (‘‘Section

922(g)(1) makes the act of receipt of a firearm by a felon a crime

without regard to his motive for such possession.’’).

8 See United States v. White Buffalo, 10 F.3d 575, 576 (8th Cir.

1993) (affirming § 5K2.11 departure for a Native American, with no

prior convictions, who lived in a remote part of a reservation and

used the shotgun ‘‘to shoot skunks, weasels, and raccoons that killed

his chickens’’); United States v. Hadaway, 998 F.2d 917, 919 (11th

Cir. 1993) (remanding for possible departure under § 5K2.11 where

11

Nor can Riley find support in the only appellate cases that

have even entertained the possibility of a § 5K2.11 departure

for a violation of § 922(g)(1). In those cases, the courts

suggested that criminalizing the innocent and transitory pos-

session of a weapon might be outside the purpose of

§ 922(g).9 Similarly, this circuit has held that innocent pos-

session could be a defense in a § 922(g) case in which a

delivery truck driver testified that he had found the gun in a

paper bag near a school, and that he took possession only to

keep it out of the children’s reach, intending to deliver it to a

police officer he knew would be at his next stop. United

States v. Mason, 233 F.3d 619, 621 (D.C. Cir. 2001). To

qualify for such a defense, we held that the record must show

that the defendant’s possession was ‘‘transitory’’ and that he

‘‘took adequate measures to rid himself of possession of the

firearm as promptly as reasonably possible.’’ Id. at 624.

Riley’s version of his conduct does not establish transitory

possession, or any similar circumstance. He was not, for

example, apprehended at a shooting range. He did say that

he used the gun at a range, but he did not say that it first

came into his possession at the range, or that he did not

a non-felon defendant claimed to have traded a bucket of sheetrock

mud for a sawed-off shotgun, ‘‘intending to keep it as a curiosity or

to use it for parts’’); see also United States v. Bristow, 110 F.3d

754, 758 n.5 (11th Cir. 1997) (distinguishing Hadaway and other

§ 5861 departure cases because in those cases ‘‘the object of the

possession, the unregistered, sawed-off shotgun, causes the posses-

sion to be unlawful,’’ while in a § 922(g)(1) case ‘‘the classification of

the possessor as a convicted felon causes the possession to be

unlawful’’).

9 See United States v. Clark, 128 F.3d 122, 123 (2d Cir. 1997)

(declaring that a departure ‘‘might have been’’ available under

§ 5K2.11, ‘‘depending on whether the defendant was to retain

possession of the gun for only a brief time necessary to deliver or

send it to his brother [as a gift] and whether, prior to delivery, the

gun would remain readily accessible to the defendant’’); United

States v. Lewis, 249 F.3d 793, 797 (8th Cir. 2001) (holding that

‘‘briefly possessing a firearm in order to pawn it to pay bills’’ was

not the kind of harm envisioned by § 922(a)(6) and (g)(1)).

12

intend to reclaim it from its ‘‘secured’’ location when it was

time to leave work. To the contrary, he had obtained a

Maryland permit for the weapon. Accordingly, even assum-

ing the facts agreed to by Riley, this case involves a felon who

possessed a firearm for an extended period of time, who

carried that weapon fully loaded on his person near a federal

building in downtown Washington, D.C., and who evidenced

no intention to permanently relinquish it. The purpose of

§ 922(g) was to criminalize just such behavior.10

IV

The second basis for the district court’s departure was

U.S.S.G. § 5K2.0, which states that ‘‘the sentencing court

may impose a sentence outside the range established by the

applicable guidelines, if the court finds ‘that there exists an

aggravating or mitigating circumstance of a kind, or to a

degree, not adequately taken into consideration by the Sen-

tencing Commission in formulating the guidelines that should

result in a sentence different from that described.’ ’’ U.S.S.G.

§ 5K2.0 (quoting 18 U.S.C. § 3553(b)). As the guidelines

manual explains:

The Commission intends the sentencing courts to treat

each guideline as carving out a ‘heartland,’ a set of

typical cases embodying the conduct that each guideline

describes. When a court finds an atypical case, one to

10 Riley also suggests that the purpose of § 922(g)(1) is merely to

keep firearms out of the hands of people who are potentially

dangerous or irresponsible, and that this purpose is served only

where the defendant’s predicate offense involved danger or violence.

We reject this contention for the same reasons discussed above.

Section 922(g)(1) applies to all felons regardless of the nature of

their prior crimes. Moreover, as discussed in Part IV, to the extent

that the nature of the predicate felony is relevant to sentencing, the

offense guideline under which Riley was convicted already took that

into account. Compare U.S.S.G. § 2K2.1(a)(6) (mandating base

offense level of 14 if the defendant was simply a prohibited person),

with id. § 2K2.1(a)(1)-(4) (mandating base offense level of at least

20 if the defendant was previously convicted of a crime of violence

or controlled substance offense).

13

which a particular guideline linguistically applies but

where conduct significantly differs from the norm, the

court may consider whether a departure is warranted.

U.S.S.G. ch. 1, pt. A, intro. cmt. 4(b); see also id. § 5K2.0,

cmt. In his motion for a downward departure, Riley argued

that his innocent, sporting purpose for possessing the gun

distinguished his case from the § 922(g)(1) heartland and

entitled him to a § 5K2.0 departure. Riley is wrong for three

reasons.

First, Riley’s argument about ‘‘the heartland’’ of

§ 922(g)(1) largely repeats his argument about ‘‘lesser

harms.’’ See United States v. Rojas, 47 F.3d 1078, 1082 n.5

(11th Cir. 1995) (noting that implicit in the court’s rejection of

a departure under § 5K2.11 ‘‘is a finding that [the defen-

dant’s] case does not warrant a downward departure because

it involves circumstances that distinguish it ‘from the ‘‘heart-

land’’ cases covered by the guidelines’ ’’) (quoting U.S.S.G.

§ 5K2.0). But as we have explained, the statute intended to

proscribe, and the guidelines to punish, precisely this case.

Cases in which the defendant had an unlawful purpose —

such as to use the weapon in a violent or drug trafficking

crime — are in the heartland of other offenses, not of

§ 922(g). See, e.g., 18 U.S.C. § 924(c); see also United States

v. Doe, 960 F.2d 221, 224–25 (1st Cir. 1992) (noting that

‘‘simple possession, even by a felon, takes place in a variety of

ways TTT many, perhaps most, of which do not involve likely

accompanying violence’’).

Second, the Supreme Court has instructed that courts

should not depart based on a factor that the applicable

offense guideline has already taken into account, unless that

factor ‘‘is present to an exceptional degree’’ — that is, unless

it ‘‘is present to a degree substantially in excess of that which

ordinarily is involved in the offense.’’ Koon, 518 U.S. at 95–

96 (quoting U.S.S.G. § 5K2.0).11 In this case, the relevant

11 To be more precise, this is the test Koon said applies if the

factor is one that the guidelines indicate is an ‘‘encouraged’’ basis

for departure. Although § 5K2.11 does make ‘‘lesser harms’’ an

encouraged factor, for the reasons discussed above we do not

14

offense guideline, § 2K2.1, does take purpose into account.

Riley was assigned a base offense level of 14 under that

guideline because he was a ‘‘prohibited person’’ (a felon) when

he committed the offense. See PSR ¶ 16 (citing U.S.S.G.

§ 2K2.1(a)(6)(A)). The same guideline, however, would have

increased Riley’s base offense level if he had used or pos-

sessed the firearm ‘‘in connection with another felony of-

fense.’’ U.S.S.G. § 2K2.1(b)(5). On the other hand, the

guideline would have decreased the base offense level if the

firearm had been possessed for narrowly-defined reasons:

‘‘solely for lawful sporting or collection purposes.’’ Id.

§ 2K2.1(b)(2). As we discuss in Part V.B below, Riley does

not qualify for a decrease on that ground. But the fact that

the guideline takes into account the circumstances in which a

defendant’s purpose should matter — as either an aggrava-

ting or a mitigating factor — counsels strongly against per-

mitting purpose to serve also as a ground for departure

unless it is truly ‘‘exceptional.’’ Riley’s purpose plainly was

not.

Third, were we to accept that possession without an unlaw-

ful purpose is outside the § 922(g) heartland, there would be

nothing left of that heartland. Guideline provision § 5K2.6

encourages upward departure ‘‘[i]f a weapon TTT was used or

possessed in the commission’’ of an offense, and § 5K2.9

similarly encourages upward departure ‘‘[i]f the defendant

committed the offense in order to facilitate TTT the commis-

sion of another offense.’’ These provisions suggest that it is

an unlawful purpose — not a neutral or ‘‘innocent’’ one —

that is outside the heartland of cases.

regard Riley’s case as falling within its compass. Hence, Riley’s

claim is more properly regarded as relying on an ‘‘unmentioned’’

factor, with respect to which Koon suggests an even stricter test.

See Koon, 518 U.S. at 96 (admonishing courts to ‘‘bear in mind the

Commission’s expectations that departures based on grounds not

mentioned in the Guidelines will be ‘highly infrequent’ ’’ (quoting

U.S.S.G. ch. 1, pt. A)).

15

V

Finally, we address two further grounds that Riley ad-

vances to justify the sentence he received.

A

Riley argues that he is entitled to a § 5K2.0 departure by

virtue of a ‘‘combination of factors’’ in addition to those we

have discussed above. Appellee’s Br. at 35. Riley says that

these include the following: his predicate felony conviction

was thirteen years old; the predicate felony was not a violent

crime or drug trafficking offense; he had turned his life

around to become an ordained minister and community lead-

er; and he had been employed with the same company for

eight years. Riley did not advance this theory below: his

sentencing memorandum specified only the two grounds that

we have discussed in Parts III and IV. See Motion. Wheth-

er the district court incorporated this theory into its reason-

ing, however, is less clear. Although the court’s written

comment specified only §§ 5K2.11 and 5K2.0, the court’s

statements at the sentencing hearing emphasized facts that

might encompass this ground, including the fact that Riley

was ‘‘gainfully employed’’ and that ‘‘[h]e supports his children

or tries to support his children.’’ 08/29/03 Tr. 6.12

12 After the district court granted a departure, Riley’s counsel

further asserted that it had been unclear to the defendant that his

thirteen-year-old felony could form the predicate for § 922(g).

08/29/03 Tr. 6–7. Now he advances this as another ground for

departure. We find this assertion factually dubious, given that

Riley had previously been convicted of possessing a gun while under

felony indictment. In any event, because ‘‘[n]othing about the

circumstances of [defendant’s] offense afforded him less notice than

any other offender would have had with respect’’ to the unlawful-

ness of his possession, his conduct is ‘‘not outside the heartland of

such offenses.’’ United States v. Hutzell, 217 F.3d 966, 969 (8th

Cir. 2000); see United States v. Bayles, 310 F.3d 1302, 1311 (10th

Cir. 2002) (holding that the ‘‘mere fact that [the defendant] was

unaware that § 922(g)(8) prohibited his possession of firearms after

the issuance of the [domestic violence] protective order does not

remove his conduct from the heartland of § 922(g)(8) cases’’).

16

These grounds are, in any event, insufficient to warrant a

departure in Riley’s case. The fact that Riley’s predicate

conviction was old and for a non-violent crime, and the fact

that he had no recent convictions, are not exceptional circum-

stances. The age of Riley’s prior crimes was already taken

into consideration by the criminal history guidelines, which

accorded him the lowest criminal history category of I — as if

he had no criminal record at all. In In re Sealed Case, 292

F.3d 913, 916–17 (D.C. Cir. 2002), this circuit held that a

downward departure may not be based on a defendant’s

criminal history where the defendant is already in category I.

See also U.S.S.G. § 4A1.3 (‘‘The lower limit of the range for

Criminal History Category I is set for a first offender with

the lowest risk of recidivism. Therefore, a departure below

the lower limit of the guideline range for Criminal History

Category I on the basis of the adequacy of criminal history

cannot be appropriate.’’). Moreover, the offense guideline

under which Riley was sentenced likewise took account of the

fact that his predicate offense was non-violent: as a conse-

quence, his offense level was 14, see U.S.S.G. § 2K2.1(a)(6),

rather than at least 6 levels higher, see id. § 2K2.1(a)(1)–(4).

The other cited characteristics — Riley’s employment rec-

ord, civic service, and family responsibilities — are also

insufficient. The sentencing guidelines categorize these as

‘‘discouraged factors,’’ which are ‘‘ ‘not ordinarily relevant to

the determination of whether a sentence should be outside

the applicable guideline range’ ’’ and may not form the basis

of a departure unless they are present to ‘‘an exceptional

degree.’’ Koon, 518 U.S. at 95–96 (quoting U.S.S.G. ch. 5, pt.

H, intro. cmt.).13 It is ‘‘the defendant [who] bears the burden

13 See U.S.S.G. § 5H1.5 (employment record); id. § 5H1.6 (family

ties and responsibilities); id. § 5H1.11 (civic, charitable, or public

service); see also United States v. Dyce, 91 F.3d 1462, 1467 (D.C.

Cir. 1996) (holding that departures for family circumstances are

permissible only when the circumstances are ‘‘extraordinary’’); id.

at 1470 (holding that, ‘‘[l]ike family responsibilities, a defendant’s

education, employment record, and various good works are not

ordinarily relevant in determining departures,’’ and may be the

17

of proving by a preponderance of the evidence that he is

eligible for a downward departure,’’ United States. v. Good-

win, 317 F.3d 293, 297 (D.C. Cir. 2003), and Riley has given

us no reason to think that his circumstances in these respects

are exceptional in any way. Finally, Riley’s claim that even if

these factors do not individually warrant a departure, they do

so in combination, faces an even higher — and here insur-

mountable — barrier: A departure based on such an alleged

combination is permissible only in ‘‘an extraordinary’’ and

‘‘extremely rare’’ case. U.S.S.G. § 5K2.0, cmt.; see Dyce, 91

F.3d at 1468. Riley’s is not such a case.

B

Riley also maintains that U.S.S.G. § 2K2.1(b)(2) provides

an alternative ground for affirming the sentence he received,

based not on a departure but rather on a downward adjust-

ment of his base offense level. That subsection of the guide-

line applicable to § 922(g) convictions instructs courts to

reduce the base offense level if the defendant ‘‘possessed all

ammunition and firearms solely for lawful sporting purposes

or collection.’’ U.S.S.G. § 2K2.1(b)(2) (emphasis added). Ri-

ley claims that proper application of that provision would

have yielded a base offense level of 6 and a guideline range of

0–6 months, which would have rendered him eligible for the

probation to which he was sentenced. See id. § 5B1.1.

This claim is new on appeal and fails on the merits. Riley

did not contend below that he had possessed the weapon

solely for sporting purposes; his sentencing memorandum

said only that he had gone to a shooting range the night

before his arrest and that he had proceeded from there to his

job in Washington. Moreover, the commentary to § 2K2.1

instructs courts to ‘‘determin[e] by the surrounding circum-

stances’’ whether a weapon was possessed solely for lawful

sporting purposes or collection. Those circumstances include

the ‘‘location and circumstances of possession,’’ and the ‘‘na-

basis for one only if the defendant is likely to make a contribution to

society of ‘‘an extraordinary degree’’) (internal quotation marks

omitted).

18

ture of the defendant’s criminal history (e.g., prior convictions

for offenses involving firearms).’’ Id. § 2K2.1 n.10.

In Riley’s case, the surrounding circumstances cut against

his claim. He did not possess the weapon at a sporting

location, but rather across a state line hours after its purport-

ed sporting use. See United States v. Morrison, 983 F.2d

730, 732 (6th Cir. 1993) (denying departure in part because

the timing of sunset indicated that the defendant ‘‘was not

hunting immediately prior to his arrest’’). The weapon was

fully loaded. See United States v. Dudley, 62 F.3d 1275, 1277

(10th Cir. 1995) (concluding that the ‘‘fact that the guns were

loaded cuts against the contention that they were solely for

sporting or collection purposes, rather than for personal

protection’’). And Riley’s criminal history included prior

convictions for firearms offenses. See supra Part I & n.1. In

short, Riley simply cannot squeeze his circumstances into the

narrow confines of § 2K2.1(b)(2).

VI

Based on the above considerations, we conclude that the

downward sentencing departure granted Riley by the district

court was unwarranted. Our dissenting colleague does not

disagree, but ‘‘would remand the case to the district court for

detailed factual findings and an explication of reasons for

departing from the Sentencing Guidelines.’’ Dissent at 8.

We decline to do so. Having given Riley every benefit of the

doubt and having assumed the truth of every factual assertion

he has offered here or in the district court, we have concluded

that there are no facts the district court could find and no

reasons it could explicate that — consistent with Riley’s

version of events — would justify a downward departure.

The problem in this case is not just insufficient factfinding by

the district judge, but the failure of the facts — as asserted

by Riley himself — to warrant a departure. Were we to

remand here, we would have to remand in every case in which

the proffered facts fail to justify a departure under any of a

defendant’s theories, a result the Congress that passed the

PROTECT Act could hardly have contemplated.

19

We, of course, agree that it is our responsibility to ‘‘accept

the findings of fact of the district court unless they are clearly

erroneous.’’ 18 U.S.C. § 3742(e). But in resolving this case

on the assumption that the facts are as the defendant alleges,

we do not ‘‘make [our] own findings of fact’’ or ‘‘speculate’’ or

‘‘surmise’’ in any way that disadvantages the defendant, Dis-

sent at 5 — just as we do not find facts when we assume the

truth of a plaintiff’s allegations in ruling on a motion to

dismiss under Federal Rule of Civil Procedure 12(b)(6). In a

case in which the defendant has neither offered nor alleged

evidence from which a factfinding in his favor could reason-

ably be derived, there is no reason to remand for a factfinding

that if made could not be legally sustained. Cf. Al–Fayed v.

CIA, 254 F.3d 300, 309 n.10 (D.C. Cir. 2001) (observing that a

court ‘‘need not remand to permit the district court to exer-

cise its discretion to depart if its decision to do so on remand

would constitute an abuse of discretion’’ (quoting United

States v. Fenner, 147 F.3d 360, 363 (4th Cir. 1998))).

We also part company with our dissenting colleague in her

repeated reliance on passages from Koon v. United States

that have been legislatively superceded by the PROTECT

Act. That statute was plainly intended to require courts of

appeals to review ‘‘de novo the district court’s application of

the guidelines to the facts’’ in the context of sentencing

departures, 18 U.S.C. § 3742(e); see id. § 3742(e)(3)(B), rath-

er than to give the district court ‘‘due deference’’ as required

by Koon, see 518 U.S. at 96–99 (rejecting de novo standard of

review in favor of due deference/abuse-of-discretion).

Finally, the cases cited by the dissent do not support the

proposition that our sister circuits, ‘‘faced with the task of

conducting de novo review of sentencing departures after

enactment of the PROTECT Act, [have] concluded that the

proper remedy for insufficient fact-finding by the district

court is a remand for additional fact-finding.’’ Dissent at 8.

Two of the cited cases are simply inapposite.14 And the third,

14In United States v. Bostic, the Sixth Circuit expressly stated

that it was not applying the PROTECT Act because the govern-

ment had failed to assert it. 371 F.3d 865, 873 n.7 (6th Cir. 2004).

The remand in United States v. Lynch had nothing to do with

20

while instructive, teaches a different lesson. In United States

v. Huerta, the government and defendant presented conflict-

ing versions of the facts, and the court of appeals remanded

because the district court had failed to determine which

version was correct. 371 F.3d 88, 95–96 (2d Cir. 2004). If

that were true in this case, a remand might well be warrant-

ed. Here, however, we do not have conflicting versions of the

facts; we have only Riley’s. And even accepting Riley’s

version, the facts are insufficient to justify a departure from

the applicable guidelines range. Under such circumstances, a

remand would be futile.

VII

For the foregoing reasons, we ‘‘set aside the sentence and

remand for further sentencing proceedings’’ consistent with

this opinion. 18 U.S.C. § 3742(f)(2)(B).

additional factfinding. In that case, the Fifth Circuit held that the

district court had improperly ordered a consecutive sentence, and

remanded the case to permit the court to state (for the first time)

whether it had intended that sentence to constitute an upward

departure from the guidelines. 2004 WL 1567852, at *3 (5th Cir.

2004).

1

ROGERS, Circuit Judge, concurring in part and dissenting in

part: Because imposing a criminal sentence implicates ‘‘the

most elemental of liberty interests — the interest in being

free from physical detention by one’s own government,’’

Hamdi v. Rumsfeld, 124 S. Ct. 2633, slip op. at 22 (2004)

(citing Foucha v. Louisiana, 504 U.S. 71, 80 (1979)), it is

imperative that courts reach sentencing decisions properly.

Cf. United States v. Saro, 24 F.3d 283, 287–88 (D.C. Cir.

1994). The Prosecutorial Remedies and Other Tools to End

the Exploitation of Children Today Act of 2003 (‘‘the PRO-

TECT Act’’), Pub. L. 108–21, 117 Stat. 650 (April 30, 2003)

(codified as amended at 18 U.S.C. § 3553ff), establishes a

new, more demanding appellate standard of review that de-

pends on detailed findings by the district court, by which the

appellate court is bound, absent clear error. Because the

court concludes that the record of appellee’s sentencing con-

tains unclear reasoning by the district court and lacks de-

tailed factual findings on relevant considerations for depart-

ing from the United States Sentencing Guidelines, see, e.g.,

U.S.S.G. §§ 5K2.0, 5K2.11, the court should obtain detailed

findings from the district court before conducting its de novo

review of the district court’s departure from the Guidelines.

For an appellate court to act on the basis of an insufficient

district court record, and in the process to make findings of

fact not touched upon by the court below, muddles the

distinct and separate roles of the district and appellate courts

under the PROTECT Act. Accordingly, I would remand the

case to the district court, which has ‘‘an institutional benefit

over appellate courts’’ that do not see nearly as many Guide-

lines cases, Koon v. United States, 518 U.S. 81, 98 (1996), so

that the court may make detailed findings in support of its

decision to depart from the Sentencing Guidelines. See 18

U.S.C. §§ 3553(c), 3742(e).

Under the PROTECT Act, the appellate court must accept

the district court’s findings of fact unless they are clearly

erroneous, but reviews de novo for limited purposes the

district court’s determination to depart from the Sentencing

2

Guidelines. See id. § 3742(e). The appellate court is still

required to give ‘‘due deference to the district court’s applica-

tion of the guidelines to the facts.’’ Id. § 3742(e). See In re

Sealed Case, 350 F.3d 113, 116 (D.C. Cir. 2003). However, if

a sentence is outside the applicable guideline range, and is

either not explained by a written statement of reasons, or

based on an impermissible factor, de novo review is warrant-

ed. See id. § 3742(e)(3)(A), (B). But in conducting de novo

review, the appellate court is limited by the PROTECT Act to

determining, as relevant here, whether the departure (1)

‘‘does not advance the objectives’’ of 18 U.S.C. § 3553(a)(2),

namely, reflecting the seriousness of the offense, promoting

respect for the law, providing just punishment and adequate

deterrence, protecting the public, and providing the defen-

dant with effective correctional treatment; (2) is ‘‘not author-

ized’’ under id. § 3553(b), which directs that sentences be

imposed within the guidelines range ‘‘unless the court finds

that there exists an aggravating or mitigating circumstance of

a kind, or to a degree, not adequately taken into consideration

by the Sentencing Commission’’; or (3) is ‘‘not justified by the

facts of the case.’’ Id. § 3742(e)(3)(B)(i)-(iii); see also id.

§ 3742(f).

The district court made the following findings of fact.

After accepting appellee’s plea to the superceding indictment,

the court released appellee on his personal recognizance

pending sentencing, finding that appellee ‘‘is gain[ful]ly em-

ployed. He has a stable residence. He has been in complete

compliance since January of this year with all the conditions

of pretrial supervision. I see no basis on which to lock him

up at this point.’’ Transcript of Plea Proceedings, Apr. 24,

2003, at 17. At sentencing, in considering the defense motion

for a downward departure of four levels under U.S.S.G.

§§ 5K2.0 and 5K2.11, the district court stated that the issue

was ‘‘the reason for which [the appellee] possessed a weapon.’’

Sentencing Transcript, Apr. 29, 2003, at 5. Noting that

appellee’s felony conviction was 13 years old, the court chal-

lenged the prosecutor’s statement that ‘‘the government is

confident that [appellee] was aware that he was not to posses

a firearm under any circumstances.’’ Id. In response to the

3

prosecutor’s final statement that a departure would not be

justified, the court stated, ‘‘[Appellee] is 42 years old. He has

been gainfully employed. * * * He hasn’t done anything

wrong since 1989. He supports his children or tries to

support his children. He seems to me to be an ideal candi-

date for probation, and I see no point at all in sending him to

prison at this point. I am going to grant the Motion for a

Departure, and you can put me on Mr. Ashcroft’s list.’’ Id. at

6. (Under the PROTECT Act, the Attorney General must

report to the House and Senate Judiciary Committees within

15 days of any downward departure by a district court from

the Sentencing Guidelines. See 18 U.S.C. § 3553 note

(2003)). After hearing defense counsel’s view that probation

was warranted because appellee was ‘‘a very atypical [d]efen-

dant,’’ id. at 7, the district court, upon hearing from appellee

personally, sentenced him to three years probation.

In the Judgment, the district court stated that it was

departing from the Sentencing Guidelines under U.S.S.G.

§§ 5K2.0 and 5K2.11 for the reasons stated in appellee’s

motion for downward departure, and that it was adopting the

factual findings and Guideline application in the presentence

report. Appellee’s departure motion briefly described his

current employment and the circumstances of his predicate

felony conviction and present arrest in support of his claim

that his ‘‘conduct [wa]s vastly different than the overwhelm-

ing majority of cases prosecuted under 18 U.S.C. § 922(g).’’

The motion argued that appellee’s conduct did not threaten

the harm sought to be prevented by § 922(g), but was more

akin to comparable cases where courts had granted depar-

tures, and differed significantly from typical conduct covered

by the heartland of cases encompassed by the Sentencing

Guidelines. Other than reciting appellee’s employment and

arrest circumstances, however, the motion was cursory and

devoid of substantive legal arguments, simply citing the hold-

ings of various cases. While the presentence report provided

additional factual information about appellee, the district

court did not articulate which and to what extent any of these

other facts influenced its decision to depart.

4

Doubtless, district court findings, whether oral or written,

have often been far from extensive in view of the limited

nature of appellate review that existed prior to the PRO-

TECT Act. See Koon, 518 U.S. at 91 (1996); United States v.

Bridges, 175 F.3d 1062, 1065 (D.C. Cir. 1999). While the

PROTECT Act does not substantively change the district

court’s ability to depart from the Sentencing Guidelines in

most cases, it does make a procedural change by requiring

the district court to set out in writing its reasons for depar-

ture, as well as expanding the scope of appellate review of

such departures. See United States v. VanLeer, 270 F. Supp.

2d 1318, 1324 (D. Utah 2003). Under § 3553(c)(2), the dis-

trict court is required to state ‘‘with specificity’’ his or her

‘‘reasons [for departing] TTT in the written order of judgment

and commitment.’’ Previously the statute only required the

district court to state ‘‘in open court’’ ‘‘the specific reason’’ for

a departure. See 18 U.S.C. § 3553(c)(2004) (amending 18

U.S.C. § 3553(c)(2000)). See Op. at 8. The House sponsor

and other supporters of the amendment, calling for de novo

appellate review, were of the opinion that district courts were

too often departing from the Sentencing Guidelines, and that

the abuse of discretion standard for appellate review under

Koon was inadequate to the task of ensuring that district

courts followed the Guidelines. See CONG. REC. H2422 (daily

ed. Mar. 27, 2003) (statement of Rep. Feeney); id. at H2423

(statement of Rep. Sensenbrenner). By requiring the district

court to provide written reasons, Congress increased the

pressure on district courts to make detailed findings of fact to

support their departure decisions. Indeed, even if the statu-

tory language in § 3553(c) had remained unchanged, the

more demanding de novo standard for appellate review itself

places a greater premium on fact-finding by the district court.

I concur in holding that there is no retroactivity problem

under the reasoning of Landgraf v. USI Film Products, 511

U.S. 244, 265 (1994). See Op. at 6–7. The PROTECT Act

neither impairs appellee’s rights to a departure under the

Sentencing Guidelines nor imposes new duties on appellee to

obtain a departure. See Ibrahim v. District of Columbia, 208

F.3d 1032, 1035–36 (D.C. Cir. 2000). I also concur in holding

5

that applying the PROTECT Act to appellee does not violate

the ex post facto clause of the Constitution, see Op. at 7, U.S.

CONST. art. I, § 10, cl. 1. The PROTECT Act does not

increase the punishment for violations of 18 U.S.C. § 922(g).

See Cal. Dep’t of Corr. v. Morales, 514 U.S. 499, 504 (1995)

(citing Collins v. Youngblood, 497 U.S. 37, 43 (1990)). Cf.

United States v. Shorty, 159 F.3d 312, 315 (7th Cir. 1998).

However, the court brushes aside too quickly the concerns

appellee raises about the practical impact of the PROTECT

Act. See Op. at 8–9. These concerns are significant for

purposes of enabling the appellate court to properly perform

its role under the PROTECT Act. Because the PROTECT

Act calls for written and more detailed fact-finding by the

district court and makes the district court’s findings that are

not clearly erroneous binding on the appellate court, it neces-

sarily follows that in departing from the Sentencing Guide-

lines, the district court’s factual findings must be more rigor-

ous. See, e.g., VanLeer, 270 F. Supp. 2d at 1324–25.

Without detailed factual findings by the district court to

support a departure from the Sentencing Guidelines, the

appellate court, even where, as here, it accepts appellee’s

version of the facts, see Op. at 8, is left to speculate and

surmise. For instance, the court states that the district court

‘‘made no mention of the circumstances of [appellee’s] arrest

or of his representations regarding the shooting range.’’ Id.

at 5. The court then proceeds to make its own findings of

fact, speculating that appellee evidenced no intention to per-

manently relinquish the firearm. See id. at 12. The court

further acknowledges that the district court’s reasoning in

granting the departure was unclear. In this regard, the court

observes that the district court’s findings left uncertain

whether the district court found that departure under

U.S.S.G. § 5K2.0 was warranted based on a ‘‘combination of

factors,’’ which together might have taken the case outside

the heartland of offenses covered by the Guideline. Id. at 15.

The court implicitly admits, in making its own findings, that

the district court failed to elaborate on key considerations

that are significant for purposes of justifying a departure in

the instant case, such as an explanation of precisely why the

6

district court concluded that appellee’s case was ‘‘exception-

al.’’ Id. at 14, 17. Additionally, as the court describes, the

district court only touched very generally on some of its

reasons for finding departure warranted. See id. at 5.

Notwithstanding the absence of detailed factual findings by

the district court, the court draws its own inferences and

conclusions, stating, on the basis of an admittedly inadequate

record, that appellee’s circumstances were clearly not ‘‘excep-

tional.’’ Id. at 14, 16–17. This conclusion reflects the quin-

tessential type of fact-finding that a district court is in a

better position to undertake than an appellate court. A

determination of the reason why appellee possessed the fire-

arm, see, e.g., United States v. Shell, 972 F.2d 548, 552 (5th

Cir. 1992), as well as a determination of whether facts are

present to ‘‘an exceptional degree,’’ Koon, 518 U.S. at 95–96

(quoting U.S.S.G. ch. 5, pt. H, intro. cmt.), are best evaluated

in the first instance by the district courts. See United States

v. Rhodes, 145 F.3d 1375, 1383–84 (D.C. Cir. 1998). As the

Supreme Court observed in Koon, 518 U.S. at 98, albeit in

support of an abuse of discretion standard for appellate

review, district courts have ‘‘an institutional advantage over

appellate courts TTT, especially as they see so many more

Guidelines cases than appellate courts do.’’ Koon, 518 U.S. at

98. With enactment of the PROTECT Act, the district

court’s institutional advantage remains unchanged; appellate

courts see far fewer Sentencing Guideline cases than district

courts and, moreover, the district court has the opportunity to

question the defendant personally. See FED. R. CRIM. P.

32(c). Consequently, a district judge’s determination of a

defendant’s purpose or that a case is truly ‘‘exceptional’’

based on specific findings of fact will generally be more

credible than when an appellate court makes the same deter-

mination based on a sparse factual record from the district

court.

In making factual findings, see Op. at 12, 14, 16–17, and

drawing inferences to support its conclusions, then, the court

distorts the appellate court’s role beyond that contemplated

by the PROTECT Act. Cf. 18 U.S.C. § 3742(f). See also

7

Williams v. United States, 503 U.S. 193, 205 (1992). Simply

assuming the defendants’ proffer of the facts to be true, see

Op. at 8, does not suffice, for this ignores the district court’s

‘‘special competence — about the ‘ordinariness’ or ‘unusual-

ness’ of a particular case.’’ Koon, 518 U.S. at 98 (quoting

United States v. Rivera, 994 F.2d 942, 951 (1st Cir. 1993)).

Findings of fact by a district court reflect experienced judg-

ment in Sentencing Guidelines cases to the factual proffers

and arguments of the parties in a particular case. See FED.

R. CRIM. P. 32(c). The colloquy between the prosecutor and

the district court that occurred in this case is indicative of

such judgments. Further, the presentence report contains

detailed facts from which the district court may draw in

determining whether or not to depart from the Sentencing

Guidelines. See id. By contrast, a defendant, as here, may

fail to identify all the relevant circumstances or fail to state

them in a manner that is likely to persuade an appellate

court. See, e.g., Op. at 4, 8. Appellee’s departure motion

appears to assume that the age and nature of his predicate

felony conviction, his current employment, and his innocent

purposes in possessing the firearm sufficed to support a

departure. Whether true or not, the deficiencies in the

district court’s factual findings pointed out by the court are of

a type that should be fleshed out at a sentencing hearing,

where in addition to obtaining assistance from the parties’

written pleadings, the district court can independently ques-

tion the parties as well.

Simply put, in the PROTECT Act, Congress not only

preserved the significant fact-finding role of the district court

sentencing, it insisted upon it. Congress’ focus was not on

transforming the fact-finding responsibilities long vested in

the district courts, but rather on ensuring that the courts

follow the Sentencing Guidelines. See 149 CONG. REC. H2423

(daily ed. Mar. 27, 2003) (statement of Rep. Feeney). To that

end, Congress requires detailed fact-finding by the district

court and written reasons in the event of departure from the

Guidelines. See 18 U.S.C. § 3553(c). While expanding appel-

late review of sentencing departures in an effort to ‘‘ad-

dress[ ] long-standing and increasing problems of downward

8

departures from the Federal sentencing guidelines,’’ 149

CONG. REC. H2422 (daily ed. Mar. 27, 2003) (statement of Rep.

Feeney), Congress made no change to the clearly erroneous

standard of review of district court findings of fact. See 18

U.S.C. § 3742(e)(4). Importantly, the roles of the district

court and the appellate court remain separate and defined

under the PROTECT Act. Heretofore, the court has recog-

nized the distinct perspective of the district court, see Rhodes,

145 F.3d at 1384, and has not been loath to remand in

sentencing matters in recognition that a district court may

draw different inferences than an appellate court looking only

at a paper record. See United States v. Lam, 924 F.2d 298,

307 (D.C. Cir. 1991). Our sister circuit, faced with the task of

conducting de novo review of sentencing departures after

enactment of the PROTECT Act, has concluded that the

proper remedy for insufficient fact-finding by the district

court is a remand for additional fact-finding. See United

States v. Huerta, 371 F.3d 88, 95 (2d Cir. 2004). As the

Second Circuit observed, its review of the district court’s

sentencing determination was hampered by the limited nature

of the district court’s factual findings. See id. To date, other

circuits have remanded for the district court’s initial consider-

ation of relevant considerations under the PROTECT Act.

See United States v. Bostic, 371 F.3d 865, 877 n.10 (6th Cir.

2004); United States v. Lynch, 2004 WL 1567852 (5th Cir.

2004).

For these reasons, I would remand the case to the district

court for detailed factual findings and an explication of rea-

sons for departing from the Sentencing Guidelines, which

must be stated ‘‘with specificity’’ and in writing, as required

by the PROTECT Act. See 18 U.S.C. § 3553(c). According-

ly, to this extent, I respectfully dissent.