United States v. Stevens

Opinions of the United

2000 Decisions States Court of Appeals

for the Third Circuit

8-14-2000

United States v. Stevens

Precedential or Non-Precedential:

Docket 99-1682 & 99-1683

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Filed August 14, 2000

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Nos. 99-1682, 99-1683

UNITED STATES OF AMERICA

v.

DWAYNE STEVENS,

Appellant

ON APPEAL FROM THE

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

(D.C. Criminal Nos. 97-625-02 and 99-165-01)

District Judge: Honorable Ronald J. Buckwalter

Argued March 9, 2000

Before BECKER, Chief Judge, NYGAARD and

GARWOOD,* Circuit Judges.

(Filed: August 14, 2000)

_________________________________________________________________

* Honorable Will L. Garwood, United States Circuit Judge for the Fifth

Circuit, sitting by designation.

Sylvia A. Russianoff

Assistant Federal Defender

Johnathan D. Libby (argued)

David L. McColgin

Assistant Federal Defender,

Supervising Appellate Attorney

Maureen Kearney Rowley

Chief Federal Defender

Federal Court Division

Defender Association of Philadelphia

Lafayette Building, Suite 800

437 Chestnut Street

Philadelphia, PA 19106-2414

Counsel for Appellant

Joseph R. Biden, III (argued)

Assistant U.S. Attorney

Michael R. Stiles

U.S. Attorney

Walter S. Batty, Sr.

Assistant U.S. Attorney

Chief Of Appeals

615 Chestnut Street

Suite 1250

Philadelphia, PA 19106

Counsel for Appellee

OPINION OF THE COURT

GARWOOD, Circuit Judge:

Defendant-appellant Dwayne Stevens (Stevens) pleaded

guilty to an indictment charging him with one count of

carjacking, in violation of 18 U.S.C. S 2119, and one count

of carrying a firearm during the commission of a violent

crime, in violation of 18 U.S.C. S 924(c). Subsequently,

Stevens pleaded guilty to an information charging another,

separate carjacking offense. At a consolidated proceeding,

the district court sentenced Stevens to 130 months'

imprisonment for the indicted carjacking offense, followed

by a minimum mandatory consecutive term of 120 months'

imprisonment for the firearms offense, and also sentenced

2

him to 120 months' for the other carjacking offense, to be

served concurrently with the other sentence. Stevens now

appeals both of his sentences. We affirm.

Facts and Proceedings Below

Stevens committed two separate carjacking offenses on

February 6, 1997, and February 11, 1997. Regarding the

February 11, 1997 offense, Stevens was indicted on

November 20, 1997 in United States District Court for the

Eastern District of Pennsylvania for one count of

carjacking, in violation of 18 U.S.C. S 2119, and one count

of carrying a firearm while committing a violent crime, in

violation of 18 U.S.C. S 924(c). Pursuant to a plea

agreement, he pleaded guilty to both counts on February 2,

1998. Regarding the February 6, 1997 offense, Stevens was

charged by information on March 26, 1999 with another

count of carjacking, to which he pleaded guilty (waiving

indictment) on May 18, 1999. The two cases were

consolidated for sentencing.

The district court sentenced Stevens on August 24, 1999.

Regarding the indictment for the February 11, 1997

offense, the district court sentenced Stevens to a term of

130 months' imprisonment for the carjacking count and a

mandatory consecutive term of 120 months' imprisonment

for the firearm count, to be followed by a three-year term of

supervised release. Regarding the information for the

February 6, 1997 offense, the district court sentenced

Stevens to 120 months' imprisonment and three years of

supervised release, to be served concurrently with his other

sentence. The district court also ordered a $100 special

assessment fee. Final judgment was entered on August 25,

1999, and Stevens filed his notice of appeal for both

sentences on September 1, 1999. The two appeals were

consolidated on September 30, 1999.

Discussion

On appeal, Stevens argues that the district court erred in

failing to "verify" whether he had read and discussed the

presentence investigation report (PSR) with his attorney, in

denying his request for a downward departure, and in

calculating his sentence. Finding no merit to his

arguments, we now affirm.

3

I. Rule 32's "Verification" Requirement

FED. R. CRIM. P. 32(c)(3)(A) requires that before imposing

sentence, a district court must "verify that the defendant

and defendant's counsel have read and discussed the

presentence report."1 This Court has declined to interpret

Rule 32 as creating "an absolute requirement that the court

personally ask the defendant if he has had the opportunity

to read the report and discuss it with counsel." United

States v. Mays, 789 F.2d 78, 79 (3d Cir. 1986). Instead, we

have allowed for a more functional fulfillment of the rule,

requiring only that the district court "somehow determine

that the defendant has had this opportunity." Id. at 80.2

In the present case, it appears that the district court fell

short of even this mark. At sentencing, the district court

made the following remarks:

This is the time set for sentencing in the matter of

United States v. Dwayne Stevens in connection with

_________________________________________________________________

1. This requirement originally appeared as FED. R. CRIM. P. 32(a)(1)(A),

which provided that before sentencing, the court"shall (A) determine

that the defendant and the defendant's counsel have had the opportunity

to read and discuss the . . . report." In 1994, Rule 32 was amended and

reorganized into its present form. Most of this Court's cases considered

the pre-1994 language of Rule 32, but for purposes of this appeal, the

changes are quite minor and those cases retain their relevance.

2. The Mays court noted that the drafters of Rule 32 explicitly imposed

on district courts the requirement of conducting a direct colloquy with

the defendant elsewhere in the Rule, specifically in subsection (a)(1)(C),

now (c)(3)(C). This subsection requires a district court, before imposing

sentence, to "address the defendant personally and determine whether

the defendant wishes to make a statement and to present any

information in mitigation of the sentence." The Mays court reasoned that

the drafters could have imposed a similar requirement on a court for its

determination about whether the defendant had read and discussed the

PSR with his attorney, but had not. Accordingly, the court declined to

impute such a requirement into the provision at issue here. See Mays,

798 F.2d at 80. In reaching this conclusion, the Mays court disagreed

with the Seventh Circuit, which had construed Rule 32 to impose an

affirmative duty on the part of the sentencing court to address the

defendant directly on the question of his having read and discussed the

PSR with counsel. See United States v. Rone, 743 F.2d 1169, 1174 (7th

Cir. 1984).

4

charges filed in this court to Docket Numbers 97-625

and 99-6 -- 99-165. A presentence investigation has

been done with respect to the charges and those

respective informations or indictments and that

presentence investigation included that the total

offense level here was 27 and criminal history category

was six, and that therefore the guideline provisions

were 130 to 162 months. And, there is, of course, the

mandatory consecutive term on Docket 97-625 of ten

years. Are there any requests for additions or

corrections to the presentence?"

We have no doubt that the omission by the able trial judge

was inadvertent and doubtless a lapse from his usual

practice. At all events, the statement does not meet Rule

32's mandate that the court "verify," in one way or another,

that the defendant has read and discussed the PSR with

his attorney. In fact, the government concedes that the

district court failed to satisfy this requirement. Stevens

contends that the district court's noncompliance with Rule

32(c)(3)(A) constitutes reversible error and that this Court

should vacate his sentence and remand for resentencing.

Because Stevens did not bring this matter to the district

court's attention, the applicable standard of review is that

of "plain error," as Stevens concedes. See FED. R. CRIM. P.

52(b); United States v. Dozier, 119 F.3d 239, 244 (3d Cir.

1997).

Under the plain error standard of Rule 52(b),3 this Court

may vacate and remand Stevens's sentence only if wefind

that (1) an error was committed; (2) the error was plain;

and (3) the error affected Stevens's substantial rights. See

United States v. Olano, 113 S.Ct. 1770, 1777-78 (1993). In

most cases, the language about affecting substantial rights

"means that the error must have been prejudcial," that is,

"[i]t must have affected the outcome of the district court

proceedings." Id. at 1778. If a forfeited error is "plain" and

"affect[s] substantial rights," a Court of Appeals "has the

authority to order correction, but is not required to do so."

_________________________________________________________________

3. FED. R. CRIM. P. 52(b) provides that "[p]lain errors or defects

affecting

substantial rights may be noticed although they were not brought to the

attention of the court."

5

Id. The Court should exercise its discretion to order such a

correction only if the error "seriously affect[s] the fairness,

integrity, or public reputation of judicial proceedings." Id. at

1776.

As the error was "plain," our next inquiry must be

whether it affected Stevens's "substantial rights." No

published opinion of this Court has yet addressed this

question. The Fourth, Sixth, Seventh, Ninth, and Tenth

Circuits have all considered the issue, however, and have

found, under either a "plain error" or "harmless error"

analysis,4 that a district court's failure to comply with the

dictates of Rule 32(c)(3)(A) (or its earlier counterpart) does

not require vacatur and remand if the defendant cannot

demonstrate that he suffered prejudice from the district

court's error. See United States v. Lockhart, 58 F.3d 86, 89

(4th Cir. 1995) (applying plain error analysis to hold that

when defendant pointed to no portion of the PSR that he

would have challenged had the district court conducted an

express inquiry, he did not show prejudice and vacatur and

remand were not warranted); United States v. Stevens, 851

F.2d 140, 144 & n.7 (6th Cir. 1988) (finding no prejudice

from district court's failure to address defendant directly

about an allegedly inaccurate PSR because the court did

not rely on any incorrect information in the PSR, and

refusing to vacate and remand); United States v. Rodriguez-

Luna, 937 F.2d 1208, 1213 (7th Cir. 1991) (declining to

vacate and remand when defendant could not show

prejudice from district court's failure to conduct express

inquiry about the PSR); United States v. Davila-Escovedo,

46 F.3d 840, 844 (9th cir. 1994) (applying harmless error

analysis, without addressing plain error, to deny

_________________________________________________________________

4. The primary difference between the two standards of review is that

under plain error review, the defendant rather than the government

bears the burden of persuasion with respect to prejudice. See Olano, 113

S.Ct. at 1778 ("In most cases, a court of appeals cannot correct the

forfeited error unless the defendant shows that the error was

prejudicial."). Moreover, under plain error review, even if the Court of

Appeals concludes that substantial rights were affected, although it "has

the authority to order correction" it "is not required to do so," id., and

it

should do so only if the error "seriously affect[s] the fairness,

integrity,

or public reputation of judicial proceedings." Id. at 1776.

6

defendant's request for resentencing when defendant made

no claim of prejudice from the district court's Rule 32

violation); United States v. Rangel-Arreola, 991 F.2d 1519,

1526 & n.5 (10th Cir. 1993) ("While we recognize

presentence reports are critical to sentencing and fairness

requires the defendant be given the opportunity to read the

report and discuss it with counsel, we will not remand for

resentencing without some showing of prejudice by the

defendant. To remand when no prejudice exists is to

require the district court to undergo an exercise in futility

in order to obtain the same sentence.").

The record reflects that the PSR was sent both to Stevens

personally and to his counsel, and that thereafter and prior

to sentencing defense counsel filed a memorandum with

the court discussing the PSR, and noting with respect to its

recital of Stevens's past criminal convictions that"Mr.

Stevens does not deny his involvement in this conduct."

Similarly, at sentencing defense counsel discussed the

PSR's description of Stevens's prior offenses and stated "Mr.

Stevens does not dispute the fact that he was involved in

that conduct or that he pled guilty to those." Neither

Stevens's original nor his reply brief asserts that either

Stevens or his counsel did not receive and read the PSR or

did not discuss it together; nor does Stevens therein raise

any claim of prejudice or assert any inaccuracy in the PSR.

Nor does anything in the record suggest otherwise. Stevens

merely contends that the district court's error was

"equivalent to a structural defect" in the sentencing

process, affected his substantial rights per se , and therefore

requires automatic vacatur and remand. Wefind this

contention meritless.

At oral argument Stevens's counsel continued to

predicate his Rule 32 contention on the basis of asserted

structural defect. Nor did he assert that Stevens had not

read the PSR or had not discussed it with counsel. He

conceded that Stevens did not deny involvement in the

prior criminal offenses listed in the PSR. However, under

questioning by the court, counsel did assert that Stevens

had not read the entire PSR and had not discussed the

entire PSR with counsel. Counsel also asserted that the

PSR erroneously failed to indicate that a co-perpetrator was

7

involved in one of the instant offenses, that Stevens did not

knowingly waive counsel in one of his prior retail theft

convictions, and that the PSR erroneously stated he had

struck the victim in a prior conviction for robbery and

burglary (the latter two contentions are difficult to reconcile

with counsel's above noted statements to the district court

at and before sentencing). Since these contentions were not

raised on brief (nor below), they are waived. See, e.g., In Re

Trans World Airlines, Inc., 145 F.3d 124, 133 (3d Cir. 1998);

Nagle v. Alspach, 8 F.3d 141, 143 (3d Cir. 1993). In any

event, no prejudice is shown. Stevens was sentenced at the

very bottom of the applicable guideline range. None of the

matters mentioned could have affected Stevens's criminal

history category (although the retail theft conviction matter

could have reduced his criminal history points by one) or

the applicable guideline range, and, considering the record

as a whole, it is clear that even if all these matters were

resolved in Stevens's favor there is no reasonable likelihood

that the sentence would have been different.

The Supreme Court has distinguished between two types

of constitutional error that occur at both trial and

sentencing: "trial errors," which are subject to

constitutional harmless error analysis, and "structural

defects," which require automatic reversal or vacatur. See

Arizona v. Fulminante, 111 S.Ct. 1246, 1264-65 (1991);

United States v. Pavelko, 992 F.2d 32, 35 (3d Cir. 1993).

Structural defects "defy analysis by harmless error'

standards," Fulminante, 111 S.Ct. at 1265, because they

"infect the entire trial process," Brecht v. Abrahamson, 113

S.Ct. 1710, 1717 (1993). Without certain "basic

protections" such as the right to counsel or an unbiased

judge, "a criminal trial cannot reliably serve its function as

a vehicle for determination of guilt or innocence, .. . and no

criminal punishment may be regarded as fundamentally

fair." Rose v. Clark, 106 S.Ct. 3101, 3106 (1986) (internal

citations omitted); see also Chapman v. California, 87 S.Ct.

824, 827-28 & n.8 (1967) (observing that some

constitutional minimums are "so basic to a fair trial that

[their] infraction can never be treated as harmless error").

"The list of errors that are structural in quality is a

limited one," West v. Vaughn, 204 F.3d 53, 60 n.7 (3d Cir.

8

2000), and includes complete denial of counsel, biased

judges, racial discrimination in selection of grand jury,

denial of self-representation at trial, denial of public trial,

and seriously defective reasonable doubt instruction, see

Neder v. United States, 119 S.Ct. 1827, 1833 (1999) (listing

cases). See also United States v. Mortimer, 161 F.3d 240,

241-42 (3d Cir. 1998) (finding structural defect in judge's

unexplained absence from the courtroom during defense

counsel's closing argument); Henderson v. Frank , 155 F.3d

159, 170 (3d Cir. 1998) (deprivation of right to counsel at

suppression hearing constituted structural defect).

Structural errors at sentencing include deprivation of

counsel during the sentencing hearing itself, see United

States v. Salemo, 61 F.3d 214, 221-22 (3d Cir. 1995),

abdication of judicial role by authorizing a probation officer

to determine the manner of restitution, see United States v.

Mohammad, 53 F.3d 1426, 1438-39 (7th Cir. 1995), and in

absentia sentencing, see Hayes v. Arave, 977 F.2d 475,

479-80 (9th Cir. 1992). "Stevens invites this Court to add to

this "very limited class of cases," Johnson v. United States,

117 S.Ct. 1544, 1549 (1997), noncompliance with Rule

32(c)(3)(A)'s verification requirement. We must decline his

invitation. First, it is indisputable that a violation of Rule

32(c)(3)(A) is nonconstitutional error, which generally cannot

amount to a structural defect. See United States v.

Quintero, 38 F.3d 1317, 1331 (3d Cir. 1994) (finding

violation of statutory right nonconstitutional error).5

Second, we do not consider this error a structural defect

because the district court's failure to verify whether Stevens

had read and discussed the PSR with counsel does not

"necessarily render [the sentencing process] unfair." Rose,

106 S.Ct. at 3106 (emphasis added). At sentencing, Stevens

was represented by counsel before an impartial judge; in

_________________________________________________________________

5. Nonconstitutional error is harmless when "it is highly probable that

the error did not contribute to the judgment." United States v. Dispoz-O-

Plastics, Inc., 172 F.3d 275, 286 (3d Cir. 1999) (quoting Government of

Virgin Islands v. Toto, 529 F.2d 278, 284 (3d Cir. 1976)); see also

Kotteakos v. United States, 66 S.Ct. 1239, 1248 (1946) (when reviewing

nonconstitutional errors on direct appeal, conviction or sentence will

only be set aside if "the error itself had substantial influence" on the

outcome). Accordingly, without any showing of prejudice,

nonconstitutional error will usually be deemed harmless.

9

the presence of both these protections, we recognize a

"strong presumption" against finding any other errors to be

structural defects. See id. The district court's

noncompliance with Rule 32(c)(3)(A) did not infect"each

and every aspect" of Stevens's sentencing, but rather only

the determination of the extent of Stevens's familiarity with

the PSR. Cf. Hays, 977 F.2d at 479. Stevens was still able

to make any and all objections to the PSR, as well as the

government's arguments, and had the opportunity to

address the court before sentencing. The impact, if any, of

this error--and as noted above, Stevens makes no

competent allegation of inaccuracy in the PSR, or that he

never read it6--was localized and did not exhibit the same

"pervasive" effect as the structural errors that this Court

and others courts have recognized. See id.

Our conclusion finds support in two of this Court's

recent opinions, United States v. Faulks, 201 F.3d 208 (3d

Cir. 2000), and United States v. Beckett, 208 F.3d 140 (3d

Cir. 2000). In Faulks, the district court violated FED. R.

CRIM. P. 43(a) by resentencing Faulks by written judgment

only, instead of orally and in Faulks's presence. This Court

held that this error required automatic vacatur and

resentencing because a defendant's right to be "eyeball[ed]"

by the sentencing judge was "not a meaningless formality"

but rather a "fundamental procedural guarantee that places

the defendant before the judge at a culminating moment of

the criminal judicial process." Faulks, 201 F.3d at 209,

211. This protection, the Faulks court found, was "deeply

rooted" in the Confrontation Clause of the Sixth

Amendment. See id. at 211. Stevens has not alleged a Rule

43(a) violation and has not provided anything beyond his

own unfounded assertions to demonstrate the "special

importance" of the district court's error that would render

it a structural defect in the sentencing process. Id. The

Faulks court observed that the requirement that the

_________________________________________________________________

6. Moreover, without some showing that his attorney actually failed to

discuss the PSR with Stevens, we will not presume that counsel acted

negligently or otherwise provided ineffective assistance. See Strickland

v.

Washington, 104 S.Ct. 2052, 2065 (1984) ("[A] court must indulge a

strong presumption that counsel's conduct falls within the wide range of

reasonable professional assistance.").

10

defendant be present at both sentencing and resentencing

was "the embodiment of a value deeply embedded in our

polity (and our jurisprudence)." Id. at 209. While no one

disputes the importance of the defendant's understanding

the PSR, which is "the critical document not only in the

sentencing process, but also in the deliberations of the

Parole Commission and the Bureau of Prisons," Mays, 798

F.2d at 80, Rule 32(c)(3)(A)'s verification requirement does

not exhibit an even remotely similar "deeply rooted"

genealogy.

In Beckett, this Court held that the district court's failure

to provide Beckett his right to allocution on resentencing

did not require vacatur and resentencing because the

district court had departed downward and sentenced

Beckett below the applicable guidelines range and Beckett

had demonstrated no prejudice. See Beckett, 208 F.3d at

148 (citing United States v. Lewis, 10 F.3d 1086, 1092 (4th

Cir. 1993)). Discussing the allocution right, the Supreme

Court in United States v. Green, 81 S.Ct. 653 (1961), held

that an earlier version of Rule 32 required that the

defendant himself, and not merely his attorney, have an

opportunity to address the court before sentencing. See id.

at 655. In doing so, the Court traced the roots of the

common law allocution back to the seventeenth century

and observed that the need for that right persisted despite

the many intervening changes in criminal procedure since

that time. See id. ("The most persuasive counsel may not be

able to speak for a defendant as the defendant might, with

halting eloquence, speak for himself."). Despite the

importance of this right, the Supreme Court held soon after

Green that denial of the allocution right was not cognizable

on federal habeas corpus review because it "is not a

fundamental defect which inherently results in a complete

miscarriage of justice, nor an omission inconsistent with

the rudimentary demands of fair procedure." Hill v. United

States, 82 S.Ct. 468, 471 (1962).

By contrast, the requirement that the sentencing court

verify that the defendant has read and discussed the PSR

with counsel was a point of some controversy and little

consensus until 1983, when the drafters of the Rules of

Criminal Procedure added it to Rule 32. See FED. R. CRIM.

11

P. 32 advisory committee's notes (chronicling dispute over

and eventual adoption of this requirement). We find it

significant that a defendant's right to allocution,

indisputably more valued and "deeply rooted" than the

verification requirement of Rule 32, nonetheless remains

subject to harmless error analysis and fails to rise to the

level of a structural defect. In light of that fact, as well as

the general presumption against expanding the list of

structural defects, we are unable to conclude that the

district court's error in this case constituted a structural

defect. Accordingly, we join the Fourth, Sixth, Seventh,

Ninth, and Tenth Circuits in holding that noncompliance

with Rule 32(c)(3)(A) does not require vacatur and

resentencing without at least some showing of prejudice by

the defendant. See Lockhart, 58 F.3d at 89; Stevens, 851

F.2d at 144 & n.7; Rodriguez-Luna, 937 F.2d at 1213;

Davila-Escovedo, 46 F.3d at 844; Rangel-Arreola, 991 F.2d

at 1526 & n.5.

As the Mays Court noted, district court errors like this

one are regrettable and easily avoidable, and we exhort

district courts to engage in the "simple practice" of

addressing defendants directly to ensure they have read

and discussed the PSR with counsel. See Mays, 798 F.2d at

80. Nevertheless, we cannot agree that this type of error

constitutes a structural defect in the sentencing process. In

the absence of any showing of prejudice or the denial of

substantial rights caused by this error, Stevens's claim

must fail.

II. Refusal to Depart Downward

In his second point on appeal, Stevens argues that the

district court erred in denying his request for a downward

departure. At his sentencing hearing, Stevens moved for a

downward departure on three separate grounds: (1)

Stevens's criminal history category of VI significantly

overrepresented the severity of his criminal history; (2)

Stevens's post-offense rehabilitation, including the

completion of religious and relationship-oriented courses,

warranted downward departure; and (3) that a

"combination of factors," including the fact that Stevens

spent a significant amount of time in county jail facilities in

New Jersey and Pennsylvania while awaiting his sentencing

12

hearing, warranted a downward departure.7 Regarding the

third basis for departure, Stevens contended that the length

of his incarceration in these county jails and the allegedly

substandard conditions there were "mitigating

circumstances" not taken into consideration by the United

States Sentencing Commission that militated in favor of

departure pursuant to U.S.S.G. S 5K2.0.8 At the sentencing

hearing, the court made the following remarks:

"Before I talk to Mr. Stevens, I think that having

reviewed the presentence investigation and having had

the benefit of defense counsel's memorandum with

regard to the guideline--criminal history category, I

think that on balance it probably does not over-

emphasize his criminal record. And, these retail thefts

were within a short span of time. There were a number

of them, three of them, in fact. And, I think the range

here of criminal six is appropriate based upon the

presentence investigation and his prior record, so I

won't change that.

With regard to any other downward departures, the

Court finds that there isn't a significant enough--

although the Court feels it has the authority to grant a

departure here, the Bible studies and other studies the

defendant has engaged in are admirable, and studies I

think someone facing what he is facing would in fact

_________________________________________________________________

7. Evidently, Stevens had been shuttled between various county jails

while awaiting sentencing. He spent 35 days in Mercer County, New

Jersey, 75 days in Lehigh County, Pennsylvania, and 132 days in

Passaic County, New Jersey.

8. U.S.S.G. S 5K2.0 provides in relevant part:

"[T]he 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 Sentencing

Commission in formulating the guidelines that should result in a

sentence different from that described.' . . . The decision as to whether

and to what extent departure is warranted rests with the sentencing

court on a case-specific basis . . . . Presence of any such factor may

warrant departure from the guidelines, under some circumstances, in

the discretion of the sentencing court."

13

do and participate in. As to the incarceration factor,

which Counsel brought up, while the Court recognizes

that conditions in county prisons might not be as

conducive to and indeed aren't as conducive to getting

certain kinds of programs to him, I don't think what

has been represented to the Court here is the type of

incarceration that would warrant any consideration on

the guidelines for departure."

Stevens concedes, as he must, that in denying the motion

on the first two grounds, the district court clearly stated

that it had the authority to grant a departure on these

grounds but chose not to do so. He maintains, however,

that in considering the third basis for departing, the

"combination of factors" regarding his presentence

incarceration, the district court did not make clear whether

it was denying the departure on legal or discretionary

grounds.

This Court's jurisdiction to consider Stevens's argument

depends on the basis for the district court's ruling. See

United States v. Denardi, 891 F.2d 269, 271-72 (3d Cir.

1989). If the ruling was based on the district court's belief

that a departure on the grounds proffered by the defendant

was legally impermissible, we have jurisdiction to determine

whether the district court's understanding of the law was

correct. See United States v. Mummert, 34 F.3d 201, 205

(3d Cir. 1994). "By contrast, if the district court's ruling

was based on an exercise of discretion, we lack

jurisdiction." Id. If the district court's stated reasons are

ambiguous--so that the record does not reflect whether the

court's denial is based on legal or discretionary grounds--

then the proper remedy is to "vacate the sentence and

remand for the district court to clarify the basis for its

ruling." Id.; see also United States v. Evans, 49 F.3d 109,

112 (3d Cir. 1995).

We find that the district court's comments were not

sufficiently ambiguous as to require vacatur and remand.

At the outset of the second paragraph, the court set out to

discuss "any other downward departures." It then

acknowledged that it had the authority to grant a departure

on the basis of these factors, which were post-offense

rehabilitation and "the incarceration factor." Regarding

14

Stevens's post-offense rehabilitation activities, such as his

Bible study classes, the district court found them

admirable but not sufficient to warrant a downward

departure. This was clearly a discretionary decision.

Assuming arguendo that the condition of Stevens's pretrial

confinement is a permissible basis for downward departure,9

it is similarly clear that the district court's denial of

Stevens's request on this basis was also discretionary.

When the district court stated "although the Court feels it

has the authority to grant a departure here" we think it was

referring to all of the "other downward departures" sought

by Stevens, and not just the one referable to the Bible

studies, which is the next item that the Court took up.

Under these circumstances, when the district court stated

that "I don't think what has been represented to the court

here is the type of incarceration that would warrant any

consideration on the guidelines for departure," the Court

was not stating that it had no legal authority to grant a

departure based on the conditions of Stevens's pretrial

confinement, but rather that Stevens had not persuaded

the court that a departure was appropriate in his case. This

was an exercise of discretion and therefore unreviewable.

See Mummert, 34 F.3d at 205.

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9. While there has been some contention among the district courts of

this Circuit over the propriety and wisdom of considering the conditions

of confinement as a basis for downward departures, several decisions

indicate that granting a departure on this ground"is not categorically

foreclosed." United States v. Ogembe, 41 F. Supp.2d 567, 571 (E.D. Pa.

1999); see also United States v. Pacheco, 67 F. Supp.2d 495, 498 (E.D.

Pa. 1999) ("While exceptionally hard conditions of confinement might

qualify for a departure . . . , a defendant must demonstrate to the court

that the conditions compare unfavorably to those suffered by other

inmates.") (internal citations omitted); United States v. Miranda, 979 F.

Supp. 1040, 1044-45 (D.N.J. 1997), appeal dismissed, 159 F.3d 1354

(3d Cir. 1998) (denying downward departure based on conditions of

pretrial confinement as record was "too sparse" to demonstrate that the

conditions were "sufficiently deplorable" ); United States v. Sutton, 973

F.

Supp. 488, 493 (D.N.J. 1997), aff 'd, 156 F.3d 1226 (3d Cir. 1998)

("Unusual pretrial confinement . . . in either length or severity of

condition, can properly be considered by the sentencing court.") We do

not decide the question of whether confinement conditions constitute a

permissible basis for downward departure.

15

III. Sentence Calculation

In a separate pro se brief, Stevens claims that when

calculating his sentence for the February 11, 1997

carjacking offense, the district court improperly imposed a

five-level enhancement based on the offense characteristic

of "brandishing" a firearm, pursuant to U.S.S.G.

S 2B3.1(b)(2)(C). While this enhancement would normally

have applied to this carjacking offense, because Stevens

also received a mandatory minimum ten-year concurrent

sentence for carrying a firearm, under 18 U.S.C.S 924(c),

the enhancement did not apply to the February 11

carjacking. See U.S.S.G. S 2K2.4, App. Note 2.10 However,

as reflected by the PSR, Stevens's sentence fully complied

with the guidelines: pursuant to section 2K2.4, the

"brandishing" enhancement was specifically not applied to

Stevens's sentence for the February 11, 1997 offense.11 The

enhancement was applied, however, to Stevens's sentence

for his February 6, 1997 carjacking offense, respecting

which he was not charged with a firearms violation.

Applying the five-level enhancement to his sentence for the

February 6, 1997 carjacking was entirely proper. 12

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10. U.S.S.G. S 2K2.4, Application Note 2, provides in relevant part:

"Where a sentence under this section is imposed in conjunction

with a sentence for an underlying offense, any specific

characteristic

for the possession, use, or discharge of an explosive or firearm .

. .

is not to be applied in respect to the guideline for the underlying

offense."

The Background Note states:

"18 U.S.C. SS 844(h), 924(c), and 929(a) provide mandatory

minimum penalties for the conduct proscribed. To avoid double

counting, when a sentence under this section is imposed in

conjunction with a sentence for an underlying offense, any specific

offense characteristic for explosive or firearm discharge, use, or

possession is not applied in respect to such underlying offense."

11. Regarding the February 11, 1997 offense, Stevens did receive a four-

level enhancement for abducting his victims, pursuant to U.S.S.G.

S 2B3.1(b)(4), and a two-level enhancement for committing an offense

that involved carjacking, pursuant to U.S.S.G. S 2B3.1(b)(5).

12. Regarding the February 6, 1997 offense, Stevens received the two-

level carjacking enhancement, as well as a one-level enhancement for

committing an offense that involved a loss (actual or intended) of more

than $10,000, pursuant to U.S.S.G. S 2B3.1(b)(7).

16

Conclusion

Stevens's sentences are

AFFIRMED.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

17