The opinion
Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
8-24-2004
USA v. Dickerson
Precedential or Non-Precedential: Precedential
Docket No. 03-4450
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PRECEDENTIAL John H. Yauch [ARGUED]
Office of Federal Public Defender
UNITED STATES 972 Broad Street
COURT OF APPEALS Newark, NJ 07102
FOR THE THIRD CIRCUIT Counsel for Appellee
No. 03-4450
OPINION OF THE COURT
UNITED STATES OF AMERICA,
Appellant
RENDELL, Circuit Judge.
v. On November 18, 2002, Robin
Dickerson pleaded guilty to importation of
ROBIN DICKERSON more than 100 grams of heroin in violation
of 21 U.S.C. §§ 952(a) and 960(b)(2), a
Class B felony with a five-year mandatory
Appeal from the United States minimum sentence. After acceptance of
District Court responsibility and minor role adjustments
for the District of New Jersey were made, Dickerson’s sentencing range
(D.C. Criminal No. 02-cr-00858) under the United States Sentencing
District Judge: Guidelines was determined to be 30 to 37
Honorable Katharine S. Hayden months. However, the District Court
granted her motion for a downward
departure based on aberrant behavior,
Argued July 12, 2004 under § 5K2.20 of the Sentencing
Guidelines, and Dickerson was sentenced
Before: RENDELL, FISHER and to five years of probation.
VAN ANTWERPEN, Circuit Judges.
The Government appeals the
District Court’s judgment of sentence,
(Filed: August 24, 2004)
urging that probation was an illegal
sentence for Dickerson’s offense, and that
the downward departure was erroneously
George S. Leone [ARGUED]
granted. It also asserts that the de novo
Office of United States Attorney
standard of review contained in the
970 Broad Street, Room 700
Prosecutorial Remedies and Other Tools to
Newark, NJ 07102
end the Exploitation of Children Today
Counsel for Appellant
Act of 2003, Pub. L. No. 108-21, § 401,
117 Stat. 650, 670 (2003) (codified at 18
U.S.C. § 3742(e)(3)(B)) (“PROTECT
Act”), applies, notwithstanding the fact thing, but that Dickerson would not meet
that the instant departure was granted prior them. Dickerson agreed, apparently
to the Act’s effective date. The District hoping to earn enough money to repay her
Court had jurisdiction based on 18 U.S.C. overdue student loans.
§ 3231, and we have jurisdiction to
From Chino, Dickerson received
consider the Government’s appeal of the
$900 in cash, which she used to purchase
sentencing order pursuant to 28 U.S.C. §
plane tickets for her trip. She departed for
1291 and 18 U.S.C. § 3742(b). For the
the Dominican Republic on Thursday,
reasons that follow, we will vacate
February 21, 2002. When she arrived
Dickerson’s sentence, remand, and instruct
there, another man named Jose met her and
the District Court to impose a sentence that
took her to a hotel. Three days later, on
falls within the applicable Guideline range.
S und ay, Jose brought Dickerso n
approximately fifty pre-packed pellets of
heroin. Dickerson was able to ingest
I. Factual & Procedural Background
eleven pellets and vaginally insert sixteen
At the time of her offense, Robin more. On Monday, February 25, 2002, she
Dickerson was twenty-four years old. She flew back to the United States, arriving at
lived with her mother in Staten Island, Newark International Airport, where
New York, and she had recently been uninvolved friends were scheduled to pick
forced to leave college after defaulting on her up. During a routine interview with
her student loans. Over the course of her Customs officers, Dickerson grew nervous
adult life, Dickerson was consistently and admitted that she was transporting
employed at various jobs, ranging from narcotics. After receiving medical
retail sales to electronic data entry. In late attention at a hospital, during which the
2001 and early 2002, Dickerson was heroin was recovered and turned over to
employed as a lab clerk at a hospital. Prior law enforcement agents, Dickerson was
to February of 2002, Dickerson had never arrested.
been arrested.
After spending three days in pretrial
In the summer of 2001, Dickerson custody, Dickerson was released on bail
was approached on a New York City street and placed on home confinement with
by a man named Chino, and they electronic monitoring. Immediately
exchanged telephone numbers at that time. following her arrest, Dickerson cooperated
A few weeks prior to February 21, 2002, with law enforcement agents by describing
Chino called Dickerson and asked if she her role in the offense and her knowledge
would travel to the Dominican Republic of other individuals involved in the
and return with narcotics in exchange for importation scheme. However, her limited
an amount of money that could range from knowledge of the operation was not
$2,500 to $3,000. Chino mentioned that sufficient to support a “substantial
other women would be doing the same assistance” adjustment under § 5K1.1 of
2
the Guidelines. On November 18, 2002, Guidelines. Defense counsel argued that
Dickerson entered a plea of guilty to Dickerson’s case was extraordinary, based
importation of more than 100 grams of on the considerations listed in the
heroin, a class B felony with a five-year commentary following the aberrant
mandatory minimum sentence. behavior policy statement. He urged that
Dicke rson’s poor pe rform ance on
On September 26, 2003, the District
psychological tests measuring intelligence,
Court sentenced Dickerson. According to
along with her history of emotional
the Presentence Report (“PSR”) prepared
problems including depression, placed her
by Dickerson’s probation officer, the
situation outside the heartland of drug
recommended offense level was 21.1 This
courier cases.3 He contended that
level took into account downward
Dickerson was particularly depressed at
adjustments based on the “safety valve”
the time of the offense, and that the brief
provision of the Guidelines in § 5C1.2, and
duration of the offense did not allow her
acceptance of responsibility pursuant to §
time to reflect on her actions. He also
3E1.1. The District Court granted a
emphasized her lack of any prior arrests or
further downward adjustment of two levels
convictions, her desire to complete
based on a finding that Dickerson played a
college, and her steady employment
minor role in the offense.2 Because this
history. In closing, he argued that a term
was Dickerson’s first offense, she had no
o f im p r i s o n m e n t w o u l d d i s r u p t
criminal history points, and she was
Dickerson’s ongoing rehabilitative efforts.
therefore assigned a criminal history
category of I. Thus, the District Court Dickerson and her mother each
determined that the appropriate sentencing briefly addressed the District Court during
range under the Guidelines was 30 to 37 the hearing, describing Dickerson’s current
months. employment and her relationship with her
mother. The Government relied upon its
At the sentencing hearing, the
District Court entertained Dickerson’s
motion for a downward departure based on 3
This argument relied in part upon a
aberrant behavior under § 5K2.20 of the
psychological evaluation of Dickerson that
was performed in July and August of 2003.
1
The PSR also explicitly stated in The report estimated that Dickerson was
paragraphs 70 and 71 that, pursuant to 18 functioning within a low-average
U.S.C. § 3651(a)(1), 21 U.S.C. §§ 952(a) intelligence range, and operated at an early
and 960(b)(2)(A), and U.S.S.G. § elementary school level in several subject
5B1.1(b)(1), Dickerson was not eligible areas. It also indicated that she was
for a sentence of probation. significantly depressed, with low self-
esteem and immaturity issues. The District
2
The Government does not challenge the Court did not explicitly credit or discredit
propriety of the minor role adjustment. any of the findings included in this report.
3
written sentencing memorandum, in which
it argued that Dickerson’s case was not
extraordinary, that the requirements for an
factors like making sure my sentence
aberrant behavior departure were not met
reflects the seriousness of what somebody
by the facts here, and that none of the
did. My sentence can’t simply ignore the
sentencing objectives listed in 18 U.S.C. §
importance of providing just punishment.
3553(a) would be furthered by a reduced
And to the extent it becomes in an open
sentence.
courtroom, there are people involved with
The District Court ultimately Ms. Dickerson who is going to know what
granted Dickerson’s motion for a kind of a sentence she got. The respect for
downward departure. The Court’s written the law has to be upheld in the kinds of
statement of reasons simply indicates that sentence that is given.
the departure was based on § 5K2.20 of Ms. Dickerson’s conduct can’t
the Guidelines, permitting departures for repeat itself. The public needs to be
aberrant behavior. The reasons for the protected. She needs to be deterred from
departure are explained somewhat by the further criminal conduct. People who hear
District Court’s oral ruling at the about her sentence need to know that
sentencing hearing. Preliminarily, the doing what she did receives appropriate
Court acknowledged its obligation to punishment.
impose a sentence that furthers the The rehabilitation that is the feature
considerations enumerated in 18 U.S.C. § of sentencing for Ms. Dickerson is also
3 5 5 3 ( a ) , i n c l u d in g d e t e r re n c e , important. And Ms. Dickerson’s life one
rehabilitation, and the need for appropriate hardly imagine she needs rehabilitation . .
punishment. The Court went on to explain . because we have here a young woman
its major reasons for departing downward, whose life-style, whose accomplishment
namely, because Dickerson was exploited before this criminal offense, whose
by those who directed the importation accomplishment since the criminal offense
s c h e m e , a n d b e c a u s e s h e h ad are all on the high road. And the criminal
accomplished much in her life prior to the conduct is a marked departure . . . .
offense, as well as following her arrest. I think as [counsel] points out an
We include in the margin the relevant important fact which struck me . . . is, that
portion of the sentencing discussion, taken she barely was able to accomplish maybe
from the hearing transcript, as it is central a third of what the folks who conscripted
to our discussion of the propriety of the or wanted her to import. And the mode of
departure in question.4 payment in terms of the amount agreed
that might have prompted Ms. Dickerson,
is the first time I have seen it by the pellet
4
The District Court stated: that she was going to get paid. It is such a
commentary on the exploitation of people
So I have to consider important conscripted in these schemes. And the fact
4
statutory prohibition of a probationary
sentence.
The District Court went on to
sentence Dickerson to five years of The Government advances two
probation, a departure of eleven levels separate challenges to the sentence
from the applicable Guideline range. imposed by the District Court. First, the
According to the Court, such a sentence Government contends that a term of
indicated that the crime was a serious one, probation is an illegal sentence for a
but also would enable Dickerson to defendant convicted of importation of
continue her efforts at rehabilitation. The heroin. Second, the Government attacks
Court specifically noted its belief that the downward departure for aberrant
Dickerson was not likely to engage in behavior, arguing that the departure itself
similar criminal behavior again. At no was not warranted, and, in the alternative,
time did the Court address, nor did the that the extent of the departure was
Government raise, the issue of the unreasonable. We will address both of
these issues in turn.
that Ms. Dickerson agreed, the fact that
she was treated this way was suggesting to II. The Ban on Probation
me she was as far removed from somebody
Before reaching the challenges to
who had the requisite criminality . . . to do
the District Court’s decision to depart
this again . . . .
downward from the relevant sentencing
So the way the offense was
range, we will examine whether the
committed, the way Ms. Dickerson fell
sentence was illegal in light of prohibitions
into the hands of the exploitative
on probationary sentences contained in
traffickers who used her, the way she came
applicable criminal statutes. The
clean, the way she’s conducted her life
Government argues that such a sentence,
since, all I believe support a finding that
in a case involving importation of heroin
this motion has merited her the conduct in
in the amount charged here, violates two
committing the offense was aberrant as in
particular federal laws. Dickerson
the guidelines, and just punishment can be
disagrees, urging that her satisfaction of
accomplished by putting Ms. Dickerson on
the prerequisites for the safety valve
a substantial period of probation that
provision of 18 U.S.C. § 3553 renders her
includes careful supervision . . . .
immune to the statutory ban on sentences
She’s got a job right now, and she’s
of probation. Further, as both parties
a lot wiser. And I think too embarked
recognize, the prosecutor failed to raise
upon a professional career where being
savvy, doing the right thing and dealing
with people in a healthy way will all be of
assistance in her behavior, not only with
the law but in terms of her supervision.
5
this objection at the sentencing hearing.5 when a plain error is brought to our
As we will explain below, we conclude attention on appeal by a defendant who
that a probationary sentence under these challenges aspects of his conviction or his
circumstances was plainly erroneous. sentence. See, e.g., United States v.
Dominguez Benitez, 124 S. Ct. 2333
(2004); United States v. Moore, 375 F.3d
A. Standard of Review 259 (3d Cir. 2004). Here, the Government
seeks to invoke the plain error doctrine,
Where a party does not object or
and Dickerson urges that it should not be
otherwise bring an error to the attention of
permitted to do so. Essentially, Dickerson
the district court, we normally review for
contends that the third prong of the plain
plain error. See United States v. Olano,
error analysis, which requires us to find
507 U.S. 725, 732 (1993); Fed. R. Crim. P.
that “substantial rights” have been affected
52(b). In order to correct a sentencing
by the error, cannot have been met where
error not raised before the district court,
the Government challenges a sentence that
that standard requires us to find that there
is too low. Such a position has apparently
was: 1) an error; 2) that is plain, or
been adopted by two other courts of
obvious; and 3) that affects substantial
appeals, which have held that allowing
rights. Olano, 507 U.S. at 732; United
illegal sentences to stand would not result
States v. Plotts, 359 F.3d 247, 249 (3d Cir.
in manifest injustice where the sentence is
2004). If those three requirements are met,
less severe than it should have been. See
it is within our discretion to correct the
United States v. Posters ‘N’ Things, Ltd.,
error if it was one that “seriously affect[ed]
969 F.2d 652, 663 (8th Cir. 1992)
the fairness, integrity, or public reputation
(refusing to find plain error where the
of judicial proceedings.” Johnson v.
sentence imposed violated the statutory
United States, 520 U.S. 461, 467 (1997)
minimum); United States v. Garcia-
(internal quotation marks omitted).
Pillado, 898 F.2d 36, 39 (5th Cir. 1990)
In the criminal context, we are most (same). 6
often called upon to apply this standard
As the parties recognize, however,
six other courts of appeals have firmly
rejected Dickerson’s argument and applied
5
We note that the prosecutor also could
have raised this issue with the District
6
Court through a motion pursuant to Although neither of these decisions has
Federal Rule of Criminal Procedure 35(a), been explicitly overruled, we question the
which allows the Government to seek continuing force of their reasoning in light
correction of a clearly erroneous sentence of the Supreme Court’s subsequent
within seven days of sentencing. rejection of the “manifest injustice” test
However, the prosecutor failed to file such for plain error, upon which both decisions
a motion. seem to rest. See Olano, 507 U.S. at 735.
6
the plain error standard in the context of was convicted under 21 U.S.C. §§ 952(a)
criminal appe als bro ugh t by the and 960(b)(2) for importing over 100
Government. See United States v. grams of heroin, a crime that is
Gordon, 291 F.3d 181 (2d Cir. 2002); categorized as a class B felony pursuant to
United States v. Perkins, 108 F.3d 512 (4th 18 U.S.C. § 3559(a)(2). According to one
Cir. 1997); United States v. Barajas- statutory provision, a defendant who is
Nunez, 91 F.3d 826 (6th Cir. 1996); found guilty of a class B felony may not be
United States v. Zeigler, 19 F.3d 486 (10th sentenced to a term of probation. 18
Cir. 1994); United States v. Edelin, 996 U.S.C. § 3651(a)(1). And, according to
F.2d 1238 (D.C. Cir. 1993); United States another statutory provision, a defendant
v. Rodriguez, 938 F.2d 319 (1st Cir. who is found guilty under 21 U.S.C. § 952
1991). According to this majority view, of importing “100 grams or more of a
the Government is equally entitled to seek mixture or substance containing . . .
plain error review because the language of heroin” cannot be placed on probation. 21
Rule 52(b) does not limit which party may U.S.C. § 960(b)(2). The Government
raise a plain error before an appellate relies on these two statutory prohibitions
court. Further, the Government’s right to on probationary sentences, both of which
seek justice on behalf of the accuser, and facially apply to Dickerson’s offense, to
society, in a criminal case can certainly be argue that the District Court committed
“substantially affected” where a plainly plain error in failing to impose a sentence
erroneous sentence that is inappropriately of imprisonment.
light is imposed. See Gordon, 291 F.3d at
Dickerson’s response to this
193; Perkins, 108 F.3d at 517.
argument is that her eligibility for the
We are persuaded that the majority statutory “safety valve” provision in 18
position is the sounder one, and we U.S.C. § 3553(f), which exempts a subset
conclude that the language of the Rule, as of defendants from applicable statutory
well as the aforesaid policy underlying it, mandatory minimum sentences under
supports allowing the Government to raise certain circumstances,7 renders the
a sentencing error on appeal, even where
that error was not brought to the attention
7
of the District Court. Thus, we will review 18 U.S.C. § 3553(f), which sets forth a
the District Court’s imposition of a “limitation on applicability of statutory
probationary sentence for plain error, minimums in certain cases,” states the
applying the typical plain error analysis set following:
forth in Olano.
Notwithsta nding a ny o th er
provision of law, in the case of an
B. Discussion offense under [certain sections of
the Controlled Substances Act,
As we have indicated, Dickerson
including 21 U.S.C. § 960,] the
7
prohibitions on probation inapplicable to
her. Alternatively, Dickerson urges that
even if the District Court erred in
court shall impose a
sentencing her to probation, we should not
sentence pursu ant to
reverse for plain error because she could
guidelines promulgated by
have been sentenced to time served based
the United States Sentencing
on her three days of pretrial confinement.
Commission under section
According to Dickerson, such a sentence,
994 of title 28 without
followed by five years of supervised
regard to any statutory
release, would have had the same practical
minimum sentence, if the
effect as a sentence of probation;
court finds at sentencing,
therefore, says Dickerson, any error here
after the Government has
was harmless and did not affect substantial
been afforded the
rights.
opportunity to make a
recommendation, that– Although our court has not
(1) the defendant does not have previously been asked to consider the
more than 1 criminal history point, interplay between the three statutes cited
as determined under the sentencing by the parties as relevant to the issue here,
guidelines; the question does not call for a complex
(2) the defendant did not use analysis. As other courts of appeals have
violence or credible threats of indicated, the answer is dictated by
violence or possess a firearm or common sense and basic principles of
other dangerous weapon (or induce statutory construction. Four other courts
another participant to do so) in of appeals have adopted the view espoused
connection with the offense; by the Government here, holding that
(3) the offense did not result in probationary sentences are barred where a
death or serious bodily injury to any
person;
(4) the defendant was not an evidence the defendant has
organizer, leader, manager, or concerning the offense or offenses
supervisor of others in the offense, that were part of the same course of
as determined under the sentencing conduct or of a common scheme or
guidelines and was not engaged in plan, but the fact that the defendant
a continuing criminal enterprise, as has no relevant or useful other
defined in section 408 of the information to provide or that the
Controlled Substances Act; and Government is already aware of the
(5) not later than the time of the information shall not preclude a
sentencing hearing, the defendant determination by the court that the
has truthfully provided to the defendant has complied with this
Government all information and requirement.
8
defendant is convicted of a class B felony, F.3d 1321 (9th Cir. 1997); United States v.
or of violating 21 U.S.C. § 960(b)(2), Belt, 89 F.3d 710 (10th Cir. 1996); United
notwithstanding eligibility for the safety States v. Snelling, 961 F.2d 93 (6th Cir.
valve.8 See United States v. Green, 105 1991); United States v. Thomas, 930 F.3d
526 (7th Cir. 1991).
We will likewise hold that such a
8
Dickerson urges that there is a circuit sentence was improper here, for reasons
split with regard to this question, and cites that were ably set forth by the Court of
decisions of the First, Fourth, and Eleventh Appeals for the Ninth Circuit in Green.
Circuits as supportive of her position. There, the defendant was convicted under
However, all of the cases mentioned by 21 U.S.C. § 841 – a different controlled
Dickerson are inapposite given the substances law that, like § 960(b)(2),
question we consider here. It is true that contained both a mandatory minimum and
the First Circuit has affirmed probationary a prohibition on probation – and was also
sentences where the relevant offenses eligible for the safety valve created by §
included statutory bars on probation, but 3553(f). In Green, the court explained:
this particular challenge to those sentences
Green argues that there is no
was not raised or examined in those cases,
difference between a statutory
each of which involved unrelated
minimum term of imprisonment
challenges to the convictions or sentences.
and a ban on probation, and
See, e.g., United States v. Sclamo, 997
therefore that the language of §
F.2d 970 (1st Cir. 1993) (examining only
3553(f) allows the sentencing judge
w h e t h e r t he de fend ant’s f amil y
to disregard both. If this were so,
circumstances rendered his case unusual
then § 841(b) would create two
enough to support a downward departure).
“minimum sentences.” The ban on
The same is true of the authority relied on
probation in § 841 would be
from the Eleventh Circuit. See United
unnecessary if there were not a
States v. Pippen, 903 F.2d 1478 (11th Cir.
way, such as § 3553(f), to dip
1990) (reviewing a sentence of community
confinement imposed in a case where the
defendant rigged bids in violation of the
Sherman Act where the only challenge was controlled substances statutes were
not based on any statutory bans on amended to include explicit bans on
probation, but instead was based on an probation. See United States v. Daiagi,
argument related to the policies underlying 892 F.2d 31 (4th Cir. 1989). As a result,
the Guidelines applicable to this type of its conclusion has been questioned and
offense). Finally, although the Fourth soundly rejected by other courts
Circuit has countenanced a probationary considering such a question after those
sentence in the context of a similar drug amendments became effective. See, e.g.,
offense, it did so before the relevant Thomas, 930 F.2d at 528.
9
below the 10-year minimum Thus, the District Court committed
imprisonment. To suggest that a error in sentencing Dickerson to probation,
court can disregard both the and we are convinced that the error was
minium sentence and the probation “plain,” given the clarity of the statutory
ban would render the ban on language and the notice included in the
probation in § 841 entirely PSR. As to the third prong of the plain
meaningless, since every time a error analysis, we are persuaded that
c o urt a v oi de d t he 10 -ye a r substantial rights were affected here, as
minimum, it could also disregard Dickerson’s sentence obviously would
the probation ban. Construing § have been different had the error not been
841(b) to give effect to every made, and Congress’s interest in
provision, it appears that § 841 imprisoning certain drug offenders is a
establishes the probation ban as the “right” to which the citizenry is entitled.
ultima te floor in case th e We will not speculate as to what sentence
mandatory minimum sentence is the District Court would have imposed
somehow avoided. We therefore absent this error, since any sentence of
hold that the “notwithstanding any imprisonment – even one of time served –
other provision of law” language in would be qualitatively different from a
§ 3553(f) is tied only to the ability probationary sentence. See United States
to disregard statutory minimum v. Granderson, 511 U.S. 39, 51 (1994)
terms of imprisonment; any other (noting that probationary sentences and
reading would eviscerate this terms of imprisonment followed by
ultimate floor in § 841. supervised release are “sentences of unlike
character”). Therefore, we conclude that
Green, 105 F.3d at 1323-24; see also
the District Court committed plain error in
Thomas, 930 F.2d at 528 (containing a
sentencing Dickerson to probation, and
similar discussion of § 841 and § 3553(e),
that the error seriously affected the
which includes language resembling that
integrity of the proceedings. Accordingly,
used in § 3553(f) and provides a second
on remand, the District Court will be
basis upon which a district court may
instructed to impose a sentence of a term
impose a sentence below the statutory
of imprisonment.
minimum). Adopting the reasoning quoted
above, we hold that D ickerson’s
probationary sentence violates the
III. The Downward Departure
statutory prohibition on sentences of
probation cited by the Government and The second set of issues raised by
referenced by the Probation Officer in the the Government’s appeal involves
PSR, despite Dickerson’s eligibility for the challenges to the departure for aberrant
safety valve provision of 18 U.S.C. §
3553.
10
behavior.9 We cannot remand for r e s e n t e n c i n g b a s e d o n t h e p l a i n ly
erroneous probationary sentence without
reaching these issues, as we must also
9 instruct the District Court whether, and to
We will address the Government’s
what extent, it can depart for aberrant
a rg u m ents r e g a r d in g D i c k e rson’s
behavior when it resentences Dickerson.
downward departure notwithstanding the
In considering these issues, not only must
fact that they involves sentencing issues
we examine the merits of the departure and
that are completely based on the Federal
the extent to which the District Court
Sentencing Guidelines, which have
reduced Dickerson’s sentence, but we
recently come under attack in the wake of
must also preliminarily consider whether
the Supreme Court’s decision in Blakely v.
and how the recently-enacted PROTECT
Washington, 124 S. Ct. 2531 (2004). We
Act impacts our standard of review in
do so because the question here involves
cases where departures have been granted
the application of a downward departure,
prior to the Act’s effective date.
rather than an upward departure or a
sentencing enhancement. Thus, unless the
entire Guidelines regime falls, the decision
A. Standard of Review
in Blakely is not clearly implicated here.
Further, in response to questioning by the Before Congress enacted the
Court at oral argument, the parties PROTECT Act on April 30, 2003, we
conceded that no Blakely-related problems reviewed a sentencing court’s decision to
are likely to arise on the facts of this case. depart from the applicable Guideline range
Additionally, we note that we might for an abuse of discretion, granting
not normally address both the issue of the substantial deference to the district courts.
statutory prohibition on probation, as well See Koon v. United States, 518 U.S. 81, 98
as the propriety of a downward departure, (1996); United States v. D’Amario, 350
since a finding that no departure was F.3d 348, 356 (3d Cir. 2003). The
warranted under the Guidelines would amendments contained in the PROTECT
render discussion of the ban on probation Act modified our standard of review,
unnecessary. But, given the uncertain requiring that we consider de novo
future of the Guidelines, we find it prudent sentences that fall beyond the range
to reach both issues now. On specified by the Guidelines. Although
resentencing, the District Court may wish
to announce an appropriate alternative
non-Guideline sentence. See, e.g., United 960(b)(2) will continue to limit the District
States v. Leach, No. 02-172-14, 2004 WL Court’s discretion with respect to
1610852, at *4 (E.D. Pa. July 13, 2004). Dickerson’s sentence, even if the
However, such a sentence must include a G u i d e l i n es a r e u l ti m a t e ly h e ld
term of imprisonment, as the ban on unconstitutional by this Court or the
probation set forth in 21 U.S.C. § United States Supreme Court.
11
numerous other courts of appeals have amended provision, we still review any
already examined the PROTECT Act’s findings of fact made by the District Court
impact on their standard of review, we for clear error. Id. The only question
have not yet spoken on the manner in before us, then, involves the effect of the
which the new standard should be applied. de novo review provision, which applies to
d e t e r m in a t i o n s m a d e u n d e r §
The relevant statutory review
3742(e)(3)(A) and (B).
provision, as amended by the PROTECT
Act, directs courts of appeals to review The Government asserts that the
sentences that are “outside the applicable application here of the standard articulated
guideline range” de novo. 10 Under this in the PROTECT Act does not run afoul of
the constitution, meaning that it can be
10
The relevant language from 18 U.S.C.
§ 3742(e) reads as follows: unreasonable degree from the
applicable guidelines range,
Upon review of the record, the having regard for the factors
court of appeals shall determine to be considered in imposing a
whether the sentence– sentence, as set forth in
(1) was imposed in violation section 3553(a) of this title
of law; and the reasons for the
(2) was imposed as a result of an imposition of the particular
incorrect applic ation o f the sentence, as stated by the
sentencing guidelines; district court pursuant to the
(3) is outside the applicable provisions of section 3553(c)
guideline range, and ....
(A) the district court failed to
provide the written statement The court of appeals shall give due regard
of reasons required by section to the opportunity of the district court to
3553(c); judge the credibility of the witnesses, and
(B) the sentence departs from shall accept the findings of fact of the
the applicable guideline range district court unless they are clearly
based on a factor that– erroneous and, except with respect to
(i) does not advance the determinations under subsection (3)(A) or
objectives set forth in (3)(B), shall give due deference to the
section 3553(a)(2); or district court’s application of the
(ii) is not authorized under guidelines to the facts. With respect to
section 3553(b); or determinations under subsection (3)(A) or
(iii) is not justified by the (3)(B), the court of appeals shall review de
facts of the case; or novo the district court’s application of the
(C) the sentence departs to an guidelines to the facts.
12
applied to cases on appeal in which the 1104-06; Saucedo-Patino, 358 F.3d at 792-
defendants were sentenced prior to the 93; Stockton, 349 F.3d at 764 & n.4;
Act’s effective date, and that the Act Mallon, 345 F.3d at 945-47.
requires us to review de novo the propriety
We take this opportunity to join our
of a departure. Dickerson, on the other
sister circuits by holding that the
hand, contends that the Ex Post Facto
PROTECT Act’s de novo review provision
clause prevents us from applying the
does not implicate the Ex Post Facto
amended standard of review to her case, as
Clause when applied to an appeal
her sentence was imposed prior to April
involving a defendant sentenced prior to
30, 2003. Alternatively, she urges that
the Act’s effective date. Like the other
where the district court departs based on a
courts that have considered identical
factor explicitly permitted by the
challenges to the review provision of the
Guidelines, such as aberrant behavior, we
PROTECT Act amendments, we conclude
should review only for abuse of discretion.
that the change to our standard of review is
We reject both of Dickerson’s arguments.
essentially a procedural change, rather than
So far, nine other courts of appeals a substantive one. See, e.g., Kostakis, 364
have published opinions in which they F.3d at 51; Mallon, 345 F.3d at 947. The
have applied the de novo standard set forth amendment does not increase the
in the PROTECT Act to departure cases punishment for an existing offense, modify
that were pending on appeal when the the circumstances under which a departure
amendments became effective. See United may be granted, criminalize previously
States v. Bell, 371 F.3d 239 (5th Cir. innocent behavior, change the elements of
2004); United States v. Kostakis, 364 F.3d an offense, or alter the facts that require
45 (2d Cir. 2004); United States v. proof at trial. Mallon, 345 F.3d at 946.
Daychild, 357 F.3d 1082 (9th Cir. 2004); Instead, the new standard of review merely
United States v. Saucedo-Patino, 358 F.3d “changes who within the federal judiciary”
790 (11th Cir. 2004); United States v. may weigh in on the decision of whether
Thurston, 358 F.3d 51 (1st Cir. 2004); the legal standards for a departure are met,
United States v. Andrews, 353 F.3d 1154 insofar as it “increase[s] the number of
(10th Cr. 2003); United States v. Stockton, judges who must consider [the] issue.” Id.
349 F.3d 755 (4th Cir. 2003); United Under these circumstances, no Ex Post
States v. Mallon, 345 F.3d 943 (7th Cir. Facto concerns arise when we apply the
2003); United States v. Hutman, 339 F.3d new standard of review to cases that were
773 (8th Cir. 2003). Six of those opinions pending before us when the PROTECT
specifically examine, and reject, Ex Post Act took effect.
Facto challenges to the application of the
Dickerson contends, however, that
new review provisions to pending appeals.
even under the PROTECT Act we should
See Bell, 371 F.3d at 241-42; Kostakis,
review for abuse of discretion here. Her
364 F.3d at 51-52; Daychild, 357 F.3d at
primary argument is based on a flawed
13
reading of 18 U.S.C. § 3742(e)(3)(B). regarding our standard of review must fail.
Specifically, she urges that we need not
The provision of the PROTECT Act
conduct any inquiry under (B)(i) or (B)(ii)
that is relevant here raises four distinct
if the departure is based on a factor that is
inquiries in which we, as a reviewing
explicitly permitted by the Guidelines – for
court, are to engage: first, did the district
example, aberrant behavior. Therefore,
court provide an adequate written
she reasons, there is no de novo review in
statement of reasons, as required by 18
a case such as hers. However, upon closer
U.S.C. § 3553(c), see 18 U.S.C. §
examination of the language of §
3742(e)(3)(A); second, does the sentence
3742(e)(3)(B), see supra note 10, we
depart from the Guideline range based on
observe that Dickerson’s argument,
a factor that advances the objectives set
focused as it is on subsections (i) and (ii),
forth in 18 U.S.C. § 3553(a)(2), and is
ignores subsection (iii). The clear
authorized under 18 U.S.C. § 3553(b), see
language of § 3742(e)(3)(B) includes three
18 U.S.C. § 3742(e)(3)(B)(i), (ii); third,
disjunctive subsections, and, in order to
does the sentence depart from the
uphold the downward departure in this
Guideline range based on a factor that is
case, we must determine that each of the
three subsections of § 3742(e)(3)(B) are
satisfied. Thus, we are required to
examine de novo, under subsection (iii),
whether the aberrant behavior departure
States v. Bell, 371 F.3d 239 (5th Cir.
was justified by the facts of Dickerson’s
2004). Under the Fifth Circuit’s ultimate
case. Dickerson’s reading of §
approach, the considerations enumerated
3 7 4 2 ( e ) ( 3 ) (B ) i s i l lo g i c a l a n d
in subsections (i) and (ii) are automatically
unsupported.11 Accordingly, her argument
fulfilled where the departure factor is one
that is listed in the Guidelines, but de novo
review of whether a departure is justified
11
Dickerson relies heavily on a decision by the facts of the case is still required.
of the Court of Appeals for the Fifth Bell, 371 F.3d at 243-44. Thus, the Fifth
Circuit in which that court appeared to Circuit no longer follows the approach
adopt her position regarding review of suggested by Dickerson; indeed, she has
departures based on factors included in the pointed us to no other courts that do. Cf.
Guidelines. See United States v. Bell, 351 Thurston, 358 F.3d at 73 (describing its
F.3d 672 (5th Cir. 2003). However, the similar view that factors listed in the
Fifth Circuit subsequently withdrew that Guidelines as permissible grounds for
opinion and issued a new decision departure automatically satisfy the first
superseding it, modifying the court’s two subsections of § 3742(e)(3)(B), but
approach to cases like this one to bring it that a de novo inquiry is still necessary to
in line with the language of the statute and determine whether subsection (iii) is
the decisions of other courts. See United satisfied as well).
14
justified by the facts of the case,12 see 18 properly granted.14 See Kostakis, 364 F.3d
U.S.C. § 3742(e)(3)(B)(iii); and fourth, if at 51, Andrews, 353 F.3d at 1155-56.
a departure is warranted, was the extent of
We need not address whether the
the departure granted by the district court
District Court’s written statement was
reasonable, see 18 U .S.C . §
sufficiently specific in light of the
3742(e)(3)(C). 13
requirements in 18 U.S.C. § 3553(c), as
In examining the first three the parties do not dispute the adequacy of
questions, we are to engage in de novo the written statement. The parties also do
review. However, as the subsection of § not devote significant attention to the
3742(e)(3) that mandates the fourth second question described above, but, as
question is not impacted by the PROTECT aberrant behavior is a factor that was
Act’s de novo standard of review considered by the Sentencing Commission
provision, we are to continue to apply an and included in the Guidelines as a
abuse of discretion standard as we review permissible basis for departures, we have
the extent of departures that have been little difficulty concluding that it is a factor
that advances the objectives of §
3553(a)(2) and is authorized under §
3553(b). See, e.g., Thurston, 359 F.3d at
12
At this third stage of our review, we
will only review whether the type of
14
departure granted is generally warranted Of course, we will only engage in this
by the facts of the case; we will not review of the extent of a departure in cases
consider whether the extent of the where, under the provisions of 18 U.S.C. §
departure is appropriate. See, e.g., Bell, 3742(a) and (b), we have jurisdiction to
371 F.3d 243; Thurston, 358 F.3d at 73; hear such a challenge in the first instance.
Andrews, 353 F.3d at 1156. Here, our jurisdiction to engage in a
review of both the propriety and the extent
13
Most courts to consider this of Dickerson’s downward departure is
PROTECT Act question have only clearly based upon § 3742(b)(3), as the
examined whether a departure is justified, Government is appealing a sentence that
and have not discussed the first two falls below the relevant Guideline range.
subsections of § 3742(e)(3)(B) in great Thus, this case does not present us with the
detail or considered how the analysis under jurisdictional questions that would
those subsections might be impacted in accompany a post-PROTECT Act appeal
cases involving factors included in the by a defendant of a district court’s
Guidelines. See, e.g., Hutman, 339 F.3d at downward departure ruling. See, e.g.,
775. However, our view of the four United States v. Linn, 362 F.3d 1261 (9th
requisite inquiries is dictated by the Cir. 2004); cf. United States v. Parker, 902
statute, and is consistent with each of the F.2d 221 (3d Cir. 1990); United States v.
nine opinions of other courts listed above. Denardi, 892 F.2d 269 (3d Cir. 1989).
15
73. Having disposed of the first two inquiries” when considering a departure
inquiries, our decision will turn on whether for aberrant behavior under § 5K2.20.
the departure for aberrant behavior was United States v. Castano-Vasquez, 266
justified by the facts of Dickerson’s case, F.3d 228, 230 (3d Cir. 2001). One inquiry
and, if it was justified, whether the extent asks “whether the defendant’s case is
of the departure was reasonable. extraordinary,” and the other asks
“whether his or her conduct constituted
aberrant behavior.” Id. Under the relevant
B. Discussion Guideline provisions, the sentencing court
is free to address these inquiries in any
We first examine the standards
order it chooses, as long as it considers
govern ing depa rtures for aberrant
both questions. Id. at 234. As we will
behavior, as they are described in the
explain below, we do not think that the
Guideline provision itself and applied in
District Court adequately addressed either
our case law.15 As we have previously
of these requisite inquiries when it
instructed, a sentencing court is required to
considere d Dickerson’s downward
engage in “two separate and independent
departure motion.16
As is true whenever a court
15
In her motion for a downward considers departing from a Guideline
departure, Dickerson originally sought a sentencing range, the District Court was
departure based on aberrant behavior required to find that Dickerson’s case was
under § 5K2.20 or, more generally, based extraordinary, or “outside the heartland” of
on a combination of factors under § 5K2.0. cases, before it departed downward. See
However, the “combination of factors” Koon v. United States, 518 U.S. 81, 95-96
departure was not mentioned at sentencing
by counsel or by the District Court. Here,
16
Dickerson focuses almost exclusively on Preliminarily, we note that a departure
aberrant behavior as well. The other for aberrant behavior is prohibited in
factors cited as potentially relevant under certain circumstances, which are described
a “combination of factors” theory – for in § 5K2.20. None of those circumstances
example, Dickerson’s history of stable are applicable here. One of the situations
employment and her attempts to cooperate listed, in which such a departure is barred,
with authorities – are all factors that are is where “the offense of conviction is a
subsumed within the aberrant behavior serious drug trafficking offense.”
analysis. Thus, because Dickerson cites no Dickerson’s crime is not considered to be
additional factors beyond the aberrant a “serious drug trafficking offense,” as
behavior considerations, we would only defined in Application Note 1, because she
place our stamp of approval on the District is eligible for the safety valve exception to
Court’s departure ruling if her case the mandatory minimum described in
warrants an aberrant behavior departure. U.S.S.G. § 5C1.2 and 18 U.S.C. § 3553(f).
16
(1996); Castano-Vasquez, 266 F.3d at 232. clear, given her completion of a job
In Application Note 2 to § 2.20 of the training program and her consistent
Guidelines, the Sentencing Commission employment history. Her ability to
has listed five considerations that may be function in an advanced academic
relevant to the extraordinariness inquiry in environment is also apparent, given the
aberrant behavior cases. The listed factors fact that she completed high school and
include the defendant’s: “(A) mental and spent two full years attending college.
emotional conditions; (B) employment Further, the District Court quite obviously
record; (C) record of prior good works; perceived Dickerson to be a capable young
(D) motivation for committing the offense; woman, and was impressed by her past
and (E) efforts to mitigate the effects of accomplishments and her ability to cope
the offense.” U.S.S.G. § 2.20, cmt. n.2. with life in a positive manner after her
These factors are “helpful guideposts,” arrest. Therefore, we cannot conclude that
rather than mandatory considerations, see her mental and emotional conditions alone
Castano-Vasquez, 266 F.3d at 235, but are dire enough to render her case
they are especially instructive as we set out extraordinary.
to review departures like this one under the
The four remaining considerations
new de novo standard. The District Court
do not persuade us that Dickerson’s
did not make any finding, either explicitly
situation falls outside the heartland of
or implicitly, as to the extraordinary nature
comparable drug cases. Although
of Dickerson’s case, as compared to other
Dicke rson’s record of consistent
cases involving similar crimes.
employment, including her ability to
After reviewing the record before secure and retain a job that she enjoys as
us, we are not convinced that Dickerson’s the proceedings related to her offense have
case is an extraordinary one. She relies moved along, is commendable, it does not
heavily upon a psychological evaluation appear to be exceptional for someone her
performed prior to her sentencing to argue age. She has not offered any examples of
that her mental and emotional conditions prior good works that would distinguish
are out of the ordinary. The conclusions her from typical defendants convicted of
contained in the report indicate that narcotics-related offenses. Her motivation
Dickerson intellectually functions at a for committing the offense was, at its core,
level that is far lower than her age would a desire to improve her financial situation,
imply, and that she has suffered from bouts which we believe is all too common for
of depression that were at times severe. people who commit this type of drug
While these findings might give us pause, courier offense. And finally, while she
we must contrast them with the facts that turned herself in and attempted to
we glean from the rest of the record. For cooperate when she was questioned by
example, Dickerson’s ability to function in Customs officials, her efforts in this regard
an adult-level working environment is do not rise to a level extraordinary enough
17
to support a departure. criminal occurrence or transaction
constitutes “aberrant behavior” if it: “(A)
Accordingly, we think that
was committed without significant
consideration of the circumstances of this
planning; (B) was of limited duration; and
case, guided by the factors listed by the
(C) represents a marked deviation by the
Sentencing Commission, do not reasonably
defendant from an otherwise law-abiding
lead to the conclusion that Dickerson’s
life.” U.S.S.G. § 5K2.20, cmt. n.1. All
case is extraordinary. We have found that
three prongs must be satisfied. Here, the
aberrant behavior departures were not
District Court limited its discussion to the
appropriate in cases involving ordinary
third factor and made no explicit or
facts and circumstances in situations that
implicit findings with respect to the other
were comparable to this one. See, e.g.,
two. On appeal, the Government does not
Castano-Vasquez, 266 F.3d at 230-31
contest the fact that this offense was a
(finding no showing of extraordinariness
“marked deviation” from Dickerson’s
where the defendant in a heroin
otherwise law-abiding life. However, the
importation case was in his fifties, did
other two requirements – regarding
volunteer work in his community, suffered
planning and duration – were not
from medical problems, and imported
considered by the District Court, and we
drugs only once to gain money to support
will briefly discuss them both.
his family after losing his ability to provide
for them by farming). As the sentencing The actual planning undertaken by
judge noted, “Dickerson fits the profile of Dickerson in connection with this offense
a[] mule.” The District Court did not included the following: she engaged in a
discuss factors that would remove preliminary discussion of the details of her
Dickerson’s case from the heartland of involvement with Chino a few weeks prior
defendants who commit comparable drug to her trip; she acquired $900 from Chino
offenses, and we do not find any basis for and used it to purchase her plane ticket;
a finding that Dickerson’s situation is and she arranged to have a friend pick her
extraordinary. up from the airport when she returned to
the United States. Additionally, as the
Even if we were to agree with
Government notes, we might also consider
Dickerson that the facts of her case were
the reasonably foreseeable planning
exceptional, we would be compelled to
undertaken by others involved in the
reject her downward departure based on
offense, since § 1B1.3(a)(1)(B) of the
our analysis pursuant to the other inquiry
Guidelines would classify such activity as
mandated by § 5K2.20 and Castano-
“relevant conduct” for sentencing
Vasquez. In analyzing whether
purposes.
Dickerson’s behavior was aberrant, a
sentencing court must engage in a three- Regardless of whether we look to
pronged analysis. According to planning undertaken by others like Chino
Application Note 1 to § 5K2.20, a single and Jose in connection with Dickerson’s
18
trip, we do not consider this to be a case 1098 n.7 (11th Cir. 2004) (indicating that,
where the defendant committed the offense in the context of a criminal statute related
without significant planning. Dickerson to coercing minors to engage in sexual
had weeks to prepare for the offense, and activity, two ninety-m inute phone
she engaged in preparatory behavior conversations were not “of limited
during that time; she was not simply duration”). Additionally, Dickerson had
approached at the airport just before four days for further reflection once she
checking her luggage and asked to carry a arrived in the Dominican Republic. As we
suitcase onto the plane. Moreover, other see it, in the context of a courier’s role in
courts have rejected departure requests on a drug importation scheme, Dickerson’s
this basis where the planning involved was offense cannot be considered “of limited
far less significant than it was here. See, duration” where her involvement spanned
e.g., United States v. Castellanos, 355 F.3d a period of several weeks.
56 (2d Cir. 2003) (upholding a district
As we noted above, the District
court’s refusal to depart where the
Court did not make findings regarding the
defendant made plans to buy heroin one
amount of planning that was involved in
week in advance and arrived at the
the offense, the duration of Dickerson’s
transaction with a large amount of cash
involvement in the offense, or the
with which to make the purchase).
extraordinary nature of this case. As is
As to the duration of the offense, clear from our previous decisions, and
the record does not reveal exactly how from the Guidelines themselves, it is
many weeks separated the phone imperative that district courts demonstrate
conv ersatio n between Chino and that they have engaged in the appropriate
Dickerson, during which the plan was first analysis and made the requisite findings
discussed, from the date when Dickerson before deciding whether to grant a
left for the Dominican Republic. departure. Considering the record before
However, we think that a period of us and the relevant case law, we see no
“several weeks” exceeds what we would reaso nable basis for finding that
view as a limited duration in this context. Dickerson’s actions “lacked significant
A few weeks is sufficient to give a planning” or were “of limited duration,” or
defendant time to consciously reflect on that her situation is removed from the
her actions and consider whether she heartland of cases involving minor
should engage in the relevant criminal participants in drug importation schemes.
behavior. See United States v. Colace, We therefore conclude that no downward
126 F.3d 1229, 1231 (9th Cir. 1997) departure for aberrant behavior is justified
(stating that offense was not of limited by the facts of this case, and we will
duration where defendant had two months instruct the District Court to resentence
“to reflect on his criminal conduct”); cf. Dickerson to a term of imprisonment that
United States v. Orrega, 363 F.3d 1093, falls within the applicable Guideline
19
range.17 will vacate Dickerson’s sentence and
remand for resentencing consistent with
this opinion, at which time the District
IV. Conclusion Court shall impose a sentence within the
appropriate Guideline range of 30 to 37
As we have explained above, the
months.
District Court committed plain error in
sentencing Dickerson to a term of
probation in the face of explicit statutory
prohibitions on such a sentence. The
District Court also erred in granting a
downward departure for aberrant behavior
on the facts of this case. Accordingly, we
17
Because we conclude that no
downward departure is warranted, we need
not engage in an examination of whether
the extent of the departure granted here
was unreasonable as the Government
alternatively argues. However, we feel
compelled to note that the District Court
granted a staggering eleven-level departure
without any explanation of why such a
departure was called for, and thus
reasonable, under these circumstances.
The Court did note a desire to avoid any
interruption to Dickerson’s rehabilitation
that would be caused by a sentence of
imprisonment. However, under our
precedent, sentencing courts are instructed
to arrive at a reasonably sized departure by
analogizing to other Guideline provisions,
and we have remanded where district
courts have failed to provide an adequate
explanation. See United States v. Jacobs,
167 F.3d 792, 800 (3d Cir. 1999) (citing
United States v. Kikumura, 918 F.2d 1084,
1113 (3d Cir. 1990)). But, given our
determination that the departure was not
warranted in the first instance, we need not
rule on this issue.
20