United States v. Minutoli

Opinions of the United

2004 Decisions States Court of Appeals

for the Third Circuit

7-8-2004

USA v. Minutoli

Precedential or Non-Precedential: Precedential

Docket No. 02-3108

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PRECEDENTIAL Attorney for Appellant

UNITED STATES COURT OF Mary Beth Buchanan

APPEALS United States Attorney

FOR THE THIRD CIRCUIT Office of the United States Attorney

Bonnie R. Schlueter, Esq.

Michael L. Ivory, Esq.

No. 02-3108 Kelly R. Labby, Esq. (Argued)

633 U.S. Post Office & Courthouse

Pittsburgh, PA 15219

UNITED STATES OF AMERICA

Attorneys for Appellee

v.

LISA ANN MINUTOLI,

Appellant OPINION OF THE COURT

APPEAL FROM THE UNITED

STATES DISTRICT COURT BARRY, Circuit Judge

FOR THE WESTERN DISTRICT OF

PENNSYLVANIA We are called upon to decide

D.C. Crim. No. 01-cr-00176 whether we have jurisdiction to review a

District Judge: The Honorable Donetta district court’s discretionary refusal to

W. Ambrose downward depart from the applicable

Sentencing Guideline range when that

refusal is based in whole or in part on an

Argued: February 25, 2004 alleged mistake of fact. The well-

established precedent of this Court

mandates the answer to this question, and

Before: RENDELL, BARRY, and the answer is a ringing “no.”

FISHER, Circuit Judges

I. INTRODUCTION

(Opinion Filed: July 8, 2004 ) On August 29, 2001, a federal

grand jury returned a two-count indictment

against Lisa Ann Minutoli (“Minutoli”).

Stanton D. Levenson, Esq. (Argued) Count One charged Minutoli w ith

1715 Gulf Tower possession with intent to distribute a

Pittsburgh, PA 15219 mixture and substance containing a

1

detectable amount of 3,4- party, the coercion and

m e t h y le n e d i o x y m e t h a m p h e t a m i n e duress does not rise to the

(MDMA), in the form of “Ecstasy” tablets, l e v e l t h a t w a r r a n ts

in violation of 21 U.S.C. §§ 841(a)(1) and de parture. (emphasis

841(b)(1)(C); and Count Two charged added).

unlawful importation into the United

States of said tablets, in violation of 21 In denying her request for an adjustment

U.S.C. §§ 952(a) and 960(b)(3). M inutoli for minor role, the District Court stated:

pled guilty to Count Two, and Count One

was subsequently dismissed. My understanding of this

case and what I believe has

It was not disputed that under the been demonstrated by the

United States Sentencing Guidelines e v i d e n c e is that t h e

(USSG), Minutoli’s base offense level was defendant was not just a

29 and her criminal history category was I, mere, to use an adjective,

resulting in a range of 87-108 months’ courier. Her importance to

imprisonment. Prior to sentencing, the success of the venture

however, Minutoli moved for a downward was vital.

departure, based on reduced mental ***

capacity (USSG § 5K2.13) and coercion But, as I indicated, I do not

and duress (USSG § 5K2.12), and for a believe, based on the

two-level reduction in her offense level as evidence, that you were a

a minor participant. (USSG § 3B1.2(b)). minor participant because of

The District Court denied these requests your importance, your

and, on July 25, 2002, sentenced Minutoli knowledge of these – the

to 87 months’ imprisonment, to be nature and scope of the

followed by three years’ supervised enterprise.

release. In denying the downward

departure, the District Court stated, in part: Minutoli raises two issues on

appeal. First, she contends that the District

[W]hile I recognize my Court made a factual error in concluding

ability to depart under that the testimony at the sentencing

5K2.12, without threat of hearing did not support a finding of

physical injury resulting physical threats and, thus, she was wrongly

from unlawful actions of a denied a downward departure under §

third party, which I don’t 5K2.12. Second, she contends that as a

believe was in the testimony, “mere” drug courier, she was entitled to a

or substantial damage to downward adjustment for her minor role in

property resulting from

unlawful action of a third

2

the offense.1 We will affirm the judgment knew as David, but whose name was, in

and sentence. fact, Elly, and with whom she carried on a

romantic relationship for four months.

II. BACKGROUND

Soon after they met, David

Sometime in the spring of 2001, informed Minutoli that the organization

Minutoli, a long-time drug user, was with which they were affiliated was an

recruited as a drug courier by a woman international drug ring and that he planned

named Christine Segetti, whom she had to break away and begin his own

met through her personal drug dealer. smuggling operation. Thus, in June 2001,

Segetti offered Minutoli $20,000, in return David and Minutoli traveled to Tijuana,

for which she traveled from Los Angeles Mexico, where they met with persons from

to Paris and then to Amsterdam, where she several countries and planned the

was given Ecstacy tablets by a man named operation, although M inutoli disclaimed

Joseph, and returned with the drugs to any role in the planning. After returning

New York City. 2 While in New York City, from Tijuana, David told Minutoli that she

she gave the drugs, minus a small portion was to go to Germany and transport drugs

for herself, to one Thomas-Elan. After back to the United States. Minutoli did not

spending about a week-and-a-half with want to make the trip and argued with

Thomas-Elan and Segetti, she returned to David about it, angering him to the point

Los Angeles, where she met a man she that he threw a car stereo at her. When

David threatened to kill her, she agreed to

1

go. The night before she left, and to

The District Court carefully assure that she would do what she had

considered this request; discussed the agreed to do, David placed his gun on top

factors we deemed important in United of a bedroom dresser before getting into

States v. Headley, 923 F.2d 1079 (3d Cir. bed with her. David was often verbally

1991), and United States v. Isaza-Zapata, abusive to her, physically threatened her,

148 F.3d 236 (3d Cir. 1998); and and told her that he had killed people

correctly determined that an adjustment before. Minutoli felt trapped by him both

for minor role was not warranted. The physically and financially, in part because

correctness of that determination is he continuously provided drugs to her,

underscored by our subsequent decision escalating her addiction. In sum, she

in United States v. Rodriguez, 342 F.3d claimed, he “broke” her.3

296 (3d Cir. 2003). We see no reason to

discuss the minor role contention further.

3

This testimony was elicited at

2

Minutoli testified that she only sentencing from M inutoli and from Dr.

received $10,000, and claims that that Lawson Bernstein, a forensic

was later stolen from her by Segetti. neuropsychiatrist. Dr. Bernstein

3

On July 24, 2001, David drove Minutoli’s other bags were a business

Minutoli to the Los Angeles airport and diary and a spiral-bound notebook. The

warned her that people would be watching business diary contained a list of

her while she was in Germany. Upon her controlled substances with monetary

arrival in Germany, she checked into a amounts next to them, and the spiral-

hotel and informed her contact in bound notebook contained several pages of

Amsterdam, a man named Daniel, of her individuals’ names with monetary amounts

location. Daniel provided her with money next to them. The notebook list appeared

for her hotel and periodically stopped by to to be a record of drug debts.

check on her. Additionally, David phoned

her nearly every day. The day before her III. DISCUSSION

return to the United States, Daniel

provided her with a suitcase for the trip. It is well-established in this Court

that we lack jurisdiction to review the

Upon her arrival at the Pittsburgh merits of a district court’s discretionary

International Airport, Minutoli was decision to refuse a downward departure

questioned and selected for examination under the Sentencing Guidelines once we

by a United States Customs Inspector. determine that the district court properly

When asked to open the suitcase Daniel understood its authority to grant a

had provided to her, she claimed that she departure:

had forgotten the combination to the lock.

After obtaining verbal permission, the If we determine the district

Inspector pried the suitcase open. In plain court was aware of its

view lay numerous plastic bags containing authority to depart from the

white tablets. These tablets, numbering Guidelines, and chose not

69,805, were MDM A or “Ecstasy,” with to, we are without power to

an estimated street value of between inquire further into the

$1,396,100 and $2,094,150. Found in merits of its refusal to grant

[the defendant’s] request.

See U nited States v.

Denardi, 892 F.2d 269, 272

admitted on cross-examination that his

(3d Cir. 1989). Stated

diagnosis and conclusion were almost

di f f e r e n tly, w e h a v e

exclusively based upon representations

jur isdic tion to dec ide

made to him by Minutoli, and cited to her

whether a sentencing court

disclosures that David provided her with

erred legally when not

drugs, coerced her into degrading sexual

making a reques ted

practices, verbally abused her, made her

discretionary downward

financially dependent upon him, and

departure, but we cannot

implied “physical harm in a variety of

hear a challenge to the

actions.”

4

merits of a of the Guidelines within the meaning of 18

sentencing court’s U.S.C. § 3742.

discretionary

decision not to depart The District Court understood its

downward from the authority to depart, and there was nothing

Guidelines. Id. complicated or ambiguous about the

Court’s statement: “I recognize my ability

United States v. Georgiadis, 933 F.2d to depart.” We could say, and it would not

1219, 1222 (3d Cir. 1991); see also, e.g., be the least bit facile to do so, that the

United States v. Gori, 324 F.3d 234, 239 District Court did precisely what we have

(3d Cir. 2003); United States v. Powell, encouraged district courts to do, i.e.

269 F.3d 175, 178-80 (3d Cir. 2001); indicate an awareness of the ability to

United States v. Stevens, 223 F.3d 239, depart, and that, therefore, under our well-

247-48 (3d Cir. 2000); United States v. established precedent, we lack jurisdiction

Evans, 49 F.3d 109, 111 (3d Cir. 1995); to review the discretionary denial of the

United States v. Mummert, 34 F.3d 201, departure.5 Game, set, and match.

205 (3d Cir. 1994); United States v.

Gaskill, 991 F.2d 82, 84 (3d Cir. 1993); But, says the dissent, the District

United States v. Love, 985 F.2d 732, 734, Court did not mean what it said. Rather,

n.3 (3d Cir. 1993); United States v. the argument goes, the Court was being

Higgins, 967 F.2d 841, 844 (3d Cir. disingenuous because it “was actually

1992). 4 The Courts of Appeals, virtually concluding” (emphasis added) “that it

unanimously, accept this general rule lacked the authority to [depart] based on

whether that rule be framed in the facts of this case.” Accordingly, the

jurisdictional terms, as our cases frame it, dissent continues, “the sentence imposed

or in terms of unfettered discretion where ‘resulted from’ an incorrect application of

there has not been an incorrect application the Guidelines, and we can review it

4 5

Parenthetically, if, as the dissent While district courts need not utter

states, only a fraction of the numerous the magic words, “I recognize I have

appeals we decide involving jurisdiction authority to grant the downward

to review denials of downward departure,” we have strongly encouraged

departures have resulted in precedential them to do so, in order both to simplify

opinions, it is because our law in this our inquiry and to eliminate any

area is settled, not because it is ambiguity. See Georgiadis, 933 F.2d at

underdeveloped. And, we note, the cases 1223. We reiterate this encouragement

the dissent briefly synopsizes in note 4 whenever guideline sentencing is

almost without exception recite our well- discussed at such events as our Court’s

settled law in this area. bench/bar conferences.

5

pursuant to 18 U.S.C. § 3742(a)(2).” impairment, finding that the defendant’s

Dissent at 1. Indeed, concludes the “condition was ‘not that type of an

dissent, “we can, and should” assume impairment so severe and complete that

jurisdiction over all appeals in which it is the downward departure [was] ...

alleged that the District Court made a warranted.’” Id. at 730. Then Judge, now

clearly erroneous factual determination in Chief Judge, Scirica, writing for the

the course of denying a discretionary majority, explained that this statement

downward departure, for we must assure could mean one of two things: either “that

that the District Court accurately Mc Quilkin’s impairment was not

understood and correctly determined the extraordinary enough to allow the court to

facts of the case. Completing the circle, an depart under the authority of § 5H1.4; or

erroneous factual finding is an incorrect that the nature of the impairment was

application of the guidelines that can be sufficiently extraordinary to allow the

reviewed. It bears repetition that the court to depart, but that the court elected

alleged error here was not whether the not to depart on this occasion.” Id. Judge

District Court mistakenly believed it Scirica interpreted the statement to mean

lacked the authority to depart but whether, that the District Court thought that

at the sentencing hearing, there was McQuilken’s condition – a left arm injury,

testimony of threats of physical injury, a and a congenital defect in his left eye – did

paradigm factual inquiry. not qualify him for the requested

departure. There was no question that

While we have not explicitly stated McQuilkin actually had that condition; the

that we lack jurisdiction to review the only question was whether that condition

allegation of a factual error in the course was of the type that empowered the

of a discretionary refusal to depart, that District Court to grant the departure.

conclusion is surely implicit in our cases. Thus, the District Court’s legal conclusion

Moreover, we reject out of hand the about its authority was at issue, not

dissent’s statement that “our decision in whether particular facts existed or whether

[United States v.] McQuilkin[, 97 F.3d its factual finding that McQuilkin was not

723 (3d Cir. 1996)] has already placed us as impaired as he claimed was correct.

on that side of the issue.” Dissent at 13.

Indeed, says the dissent, McQuilkin is “the Parenthe tic all y, the dis sent

case that most clearly stands for the attributes great significance to the

proposition that we can review for clear McQuilkin Court’s use of the phrase “clear

error in a case like this one.” Id. at 13. error.” Because we used that phrase, the

dissent argues, we “obviously were not

But McQuilkin was not a case “like reviewing a purely legal conclusion.”

this one.” In McQuilkin, the District Court Dissent at 9. It is fair to say that, given the

refused to grant a discretionary downward legal conclusion we were reviewing, to

departure for extraordinary physical have invoked clear error as to the standard

6

of review was, at best, confusing. But if 2001). 6

“clear error” was inadvisedly used in

McQuilkin, that error has not been At bottom, then, the dissent is left

repeated in any one of numerous

precedential opinions in this area that have

followed. 6

An earlier First Circuit case explained

when an appeal does and does not lie:

McQuilkin is but one of a number

of our cases cited by the dissent to support

If the judge sets differential

a finding of jurisdiction to review denials

factfinding and evaluative

of requests for downward departures.

judgments to one side, and

Without exception, however, in each case

says, in effect, “this

in which jurisdiction was found, it was

circumstance of which you

because of a legal rather than a factual

speak, even if it exists, does

conclusion. See, e.g., United States v.

not constitute a legally

Dominguez, 296 F.3d 192 (3d Cir. 2002)

sufficient basis for

(finding jurisdiction to review a refusal to

departure,” then the

depart downward based on district court’s

correctness of that

erroneous legal conclusion that it lacked

quintessentially legal

jurisdiction to consider the requested

determination may be

departure); United States v. Castano-

tested on appeal. But if the

Vasquez, 266 F.3d 228 (3d Cir. 2001)

judge says, in effect, either

(district court adopted the proper legal

that “this circumstance of

s t a n d a r d / a n a l yt i c al c o n s t r u ct f or

which you speak has not

interpreting and applying newly enacted

been shown to exist in this

USSG § 5K2.20 and, citing McQuilkin,

case,” or, alternatively, that

made clear that “[w]e lack jurisdiction to

“while this circumstance of

review a refusal to depart downward when

which you speak might

the district court, knowing it may do so,

exist and might constitute a

nonetheless determines that departure is

legally cognizable basis for

not warranted”); United States v. Bierley,

a departure in a theoretical

922 F.2d 1061 (3d Cir. 1990) (finding

sense, it does not render

jurisdiction because district court’s

this particular case

decision not to depart was predicated on

sufficiently unusual to

legally erroneous impression that it did not

warrant departing,” then, in

have authority to depart). As the First

either such event, no

Circuit observed, “in the context of

appeal lies.

departures, the touchstone of appealability

is a mistake of law.” United States v.

United States v. Pierro, 32 F.3d 611, 619

Dewire, 271 F.3d 333, 337 (1st Cir.

(1st Cir. 1994).

7

with United States v. Sammoury, 74 F.3d not a misapplication of the

1341 (D.C. Cir. 1996), the case, apart from S e n t e n c in g G u i d e l in e s

McQuilkin, on which it principally relies. simply because the district

To be sure, the Sammoury Court court, as a matter of

concluded that if a discretionary refusal to discretion, refuses to impose

depart is based on a clearly erroneous a lesser sentence than the

factual mistake, that decision is reviewable law authorizes, even if its

on appeal. It is just as surely wrong, and factual reasons for doing so

has not once been cited for this novel are mistaken.

conclusion, much less followed, by any

Court of Appeals. Indeed, the one Court Dewire, 271 F.3d at 338-39 (quotation,

of Appeals that has even discussed this citations and note omitted).

conclusion has explicitly and persuasively

rejected it. Dewire, 271 F.3d 333. We The Fourth Circuit has also rejected

cannot say it better than that Court said it: an exception for alleged factual mistakes

to the rule that “the only circumstance in

The reasoning in Sammoury which review is available is when the

was based on a conflation of district court mistakenly believed that it

18 U.S.C. §§ 3742(a)(2) and lacked the authority to depart.” United

(e)(2), which authorize States v. Underwood, 970 F.2d 1336, 1338

review of a sentence based (4th Cir. 1992); see also United States v.

on an incorrect application Matthews, 209 F.3d 338, 352-53 (4th Cir.

o f t h e Sentencin g 2000). The Seventh Circuit concurs: “[A]

Guidelines, with section determination by the sentencing judge that

3742(e)’s mandate that the facts of a case do not support a

appellate courts are to downward departure is not reviewable on

“accept the findings of fact appeal.” United States v. Steels, 38 F.3d

of the district court [on 350, 352 (7th Cir. 1994).

sentencing matters] unless

they are clearly erroneous” . The dissent concedes this much:

. . We believe that “we cannot review a purely discretionary

Sammoury misapprehends refusal to depart . . . where the court

the difference between a correctly determines the relevant facts and

factually correct application applies the appropriate Guideline

of the sentencing guidelines, principles” and where it is “clear that the

to which a defendant is sentence did not result from the allegedly

entitled, and the award of a mistaken factual finding.” Dissent at 3-4,

discretionary departure, to 11. But would we not have to review to

which he is not. An determine if it was “clear” that the facts

otherwise proper sentence is were correctly determined or, as the

8

dissent phrases it, to see if the District fact may have exerted on a

Court had an “accurate perception of the tri a l j u d g e ’ s u ltima te

facts”? Indeed, would we not, then, be sentencing decision.

addressing the merits of the departure

request itself even before we are able to Dewire, 271 F.3d at 339-40 (notes

determine that we have jurisdiction to omitted). The Court illustrated the last

address the merits? See Mummert, 34 point: if, for example, a defendant shows

F.3d at 205. that one of a trial judge’s three reasons for

refusing to depart was wrong, the appeals

It does not require any great leap of court would have to consider whether

faith to believe that were the dissent to either of the other two reasons would have

carry the day, there will nary be an appeal been sufficient and the degree to which

from the denial of a downward departure that reason influenced the judge’s

that will not contain an allegation of thinking, vitiating the broad discretion

factual error. It also does not require any granted to sentencing judges.

great leap of faith to predict that district

courts may well eschew explanations for Returning to where we began, our

their refusals to depart and simply state precedent and sound policy reasons

that they are denying departures on mandate the conclusion that where a

discretionary (as opposed to legal) district court allegedly made a mistake of

grounds, while recognizing their authority fact when, in the exercise of its discretion,

to grant those departures. As the Dewire it refused to grant a request for a

Court put it: downward departure, while aware of its

authority to grant that request, we lack

The precedents to which we jurisdiction to review that decision.

adhere in today’s decision

rest on sound polic y IV. CONCLUSION

grounds. Because a trial

court’s refusal to depart is Because the District Court correctly

inherently discretionary and denied an adjustment for minor role in the

fact-based, a rule contrary to offense, we will affirm the judgment and

our precedent would invite sentence. We lack jurisdiction to review

frivolous appeals, the denial of the request for a downward

discourage trial judges from departure.

explaining a refusal to

depart, and require this court

to second-guess, on a cold,

and often factually dense

r e c ord, the su bjecti ve

influence that a questionable

9

[US v. Minutoli, 02-3108 (2/25/04)] there was no record evidence of threats of

physical injury or physical damage to

RENDELL, Circuit Judge, Dissenting. property. Therefore, rather than exercising

its discretion, I submit that the Court was

The line between an unreviewable actually concluding that it lacked the

discretionary refusal to depart and a legal authority to grant a § 5K2.12 departure

or fact-based determination that the court based on the facts of this case.

lacks the authority to depart in a given case

is often hard to discern. This is especially Reading the Court’s reasoning in

so given the language that district courts toto, it becomes apparent that the District

are routinely using in explaining their Court’s statement regarding its “ability” to

sentencing decisions. The District Court depart was not a legal conclusion; rather,

in the instant case made the following the statement was a reference to the fact

statement regarding the departure under § that the departure provision for coercion or

5K2.12 of the Sentencing Guidelines: duress in § 5K2.12 was potentially

applicable here. However, the Court went

And with the coercion and on to conclude that the provision was not

duress, additionally, while I applicable, based on the lack of testimony

recognize my ability to regarding a factor that constitutes a

depart under 5 K 2 . 1 2 , prerequisite to its application. But, as

without threat of physical Minutoli correctly points out, such

i n j u ry resulting fro m testimony was presented. Accordingly, the

unlawful actions of a third sentence imposed “resulted from” an

party, which I don’t believe incorrect application of the Guidelines,

was in the testimony, or and we can review it pursuant to 18 U.S.C.

substantial da m age to § 3742(a)(2).

property resulting from

unlawful action of a third Thus, I disagree with the majority’s

party, the coercion and conclusion that we cannot review the

duress does not rise to the denial of a departure in a case such as this,

l e v e l th at w ar r a n ts where the District Court acknowledged its

departure. general power under the Guidelines but

then concluded that the case before it was

In finding that we lack jurisdiction, the not one in which a departure was

majo rity focuse s on th e Co urt’s authorized. In fact, I find a statutory

acknowledgment of its “ability to depart,” foundation, as well as a basis in our own

concluding that the denial in this case was jurisprudence, for reviewing the factual

discretionary. I, on the other hand, believe findings supporting such a conclusion for

that the District Court’s determination was clear error. Additionally, I derive

based on its erroneous factual finding that guidance and support for this view in the

10

well-reasoned decisions of some of our third party” caused the defendant to

sister courts of appeals that have commit the offense, but where the

confronted this issue. Based on my circumstances did not amount to a

reading of these cases, I conclude that we complete duress defense. The record

can, and should, assume jurisdiction over contained evidence that Minutoli’s

appeals like this one, involving allegations boyfriend threw a stereo at her, threatened

that the district court based its denial of a to kill her if she would not transport the

departure on clearly erroneous factual drugs, informed her that he would have her

findings. followed throughout her trip to Europe,

and intimidated her with a gun in their

I. bedroom the night before she left. Yet the

I will begin by reviewing the District Court ignored this evidence,

statutory basis for our jurisdiction over essentially saying that it was not there.

criminal appeals challenging sentencing

decisions, positing when and how we Therefore, our jurisdiction to

should exercise our jurisdiction in cases review this case is based on § 3742(a)(2).

involving denials of downward departures. This is because when a district court

Then, in Parts II and III, I will discuss the makes an erroneous factual finding that is

case law that supports this reasoning. relevant to its determination as to whether

the departure provision applies, the

Under 18 U.S.C. § 3742(a)(1) and sentence has necessarily been imposed as

(2), we are empowered to review sentences a result of an incorrect application of the

that are imposed “in violation of law” or Guidelines. Here, the District Court

“as a result of an incorrect application of incorrectly ignored evidence relevant to

the sentencing guidelines.” Minutoli does the application of the Guideline provision

not contend that her sentence violates any concerning coercion and duress. How can

law under (a)(1). Rather, she argues that the Guideline have been properly applied

the District Court incorrectly applied the in Minutoli’s case where the District Court

Sentencing Guidelines in that it clearly made an erroneous factual finding that

erred when it considered whether certain resulted in the Guideline’s not being

facts were present in order to qualify her applied at all, whereas a correct finding

for a departure under the pertinent could have rendered the coercion or duress

Guideline provision, specifically, whether departure provision applicable to her

the offense was caused by coercion or situation? Under the statutory review

duress as contemplated by § 5K2.12 of the authority contained in § 3742(a)(2), we

Guidelines. That provision notes that this have jurisdiction to monitor the District

departure is reserved for cases in which “a Court’s application of the Guidelines, and

threat of physical injury, substantial we should do so here.

damage to property or similar injury

resulting from the unlawful action of a The majority seeks to draw a bright

11

line between legal and factual errors, but This does not mean that all

such a distinction has no significance departure challenges are reviewable. For

when considering the statutorily-defined instance, § 3742(a) does not give us

bounds of our jurisdiction. The statutory jurisdiction to review in a case where a

power to review simply is not limited to defendant has succeeded in obtaining a

cases involving challenges to a district downward departure, but argues that the

court’s legal conclusions. Rather, we are departure should have been larger than it

to review if there appears either a violation was. There really is no correct or incorrect

of law or an incorrect application of the way to apply the Guidelines once a

Sentencing Guidelines. The statute does departure provision is deemed satisfied in

not limit our jurisdiction in situations of a particular case, and the district court

“incorrect application” in the way the clearly does have discretion to depart from

majority suggests; it does not remove from the relevant range to the degree it sees fit.

the scope of our review power situations in And, we cannot review a purely

which the incorrect application of the discretionary refusal to depart8 where the

Guidelines has occurred because of an

erroneous factual finding. The majority

would read such a caveat into the statute, considering the relevant provision. In

but it just is not there.7 order to correctly apply the Guidelines to

a given case, a district court must first

identify the proper provisions of the

Guidelines, and then it must consider the

7

At least some of the discord between applicability or “fit” of those provisions

the majority’s position and my own in light of the correctly-determined facts

seems to arise from our differing views of the case. In other words, the court

regarding what it means to “apply” the must find the facts correctly, then

Guidelines. The majority is correct that, correctly apply the appropriate Guideline

in some sense, the District Court here to those facts.

“applied” the Guidelines correctly,

8

insofar as it correctly identified the By “purely discretionary refusal to

relevant departure provisions, and depart” I mean a case in which the

properly understood the factors that a district court finds that the facts do

defendant must prove before a district satisfy the relevant Guideline provision,

court is free to consider granting a such that the court has the authority to

departure under that provision. depart in the particular case before it, but

However, beyond identifying the correct where the court exercises its discretion in

legal standards, I believe that the proper deciding not to grant the departure for

“application” of the Guidelines must also some other reason. An example of this,

include an accurate understanding of the based on a variation of the facts of this

facts that are pertinent to the analysis in case, would be a case in which the

which the court must engage when defendant presents significant evidence

12

district court’s view as to its legal power to the authority to depart in cases where the

depart under the Guidelines was correct – facts “fit” within one of the relevant

in other words, where the court correctly provisions, such as the provisions of

determines the relevant facts and applies Chapter 5 implicated in this case. Here,

the appropriate Guideline principles, but under § 5K2.12, the trial court only has the

declines to depart. See United States v. authority to depart downward if the

Ruiz, 536 U.S. 622, 627 (2002) (listing situation involves threats of physical injury

cases from every court of appeals reaching or substantial property damage, and if

this conclusion). Similarly, where a those threats caused the defendant to

district court does make a legal or factual commit the relevant offense. So where the

error, but nonetheless makes clear that the situation does not involve any threats of

sentence did not result from that error that sort, a district court does not have the

because, even if the departure provision power to invoke § 5K2.12 and depart

“fit,” the court would not be inclined to downward.

grant it, we could not exercise our power

of review. But we can, and should, review Here, the Court made a clearly

refusals to depart where the district court erroneous factual finding when it stated

makes an error in applying the Guidelines, that there was no testimony of physical

whether due to an erroneous factual threats or violence in the record. As noted

determination or a misapplication of law to above, both Minutoli and Dr. Bernstein

the facts, whereby the district court testified regarding various instances of

mistakenly concludes that it is without the threats and violence that occurred in the

specific authority to depart in the case days leading up to Minutoli’s trip. While

before it, and the sentence has been there might be legitimate reasons for

imposed as a result of that error. Such denying a departure in this case, even in

cases fall squarely within § 3742(a)(2). the face of these threats and acts of

violence, it appears as though the District

The Guidelines grant district courts Court ignored or forgot about this

testimony altogether and based its ruling

on the lack of such evidence.

Accordingly, we have jurisdiction to

of threats or physical violence, leading

review under § 3742(a)(2).

the district court to conclude that the

defendant qualifies for a departure under

The majority’s fear that a finding of

§ 5K2.12. In such a case, the court

jurisdiction here would force us to

would recognize its specific authority to

constantly review the merits of district

depart for that particular defendant, but

court rulings in order to determine our

could discretionarily refuse to do so

jurisdiction is unfounded. We are already

simply because the defendant seems like

in the business of doing so, to a certain

a “bad” person, or for any number of

extent, every time we examine a district

other reasons.

13

court’s sentencing ruling to decide whether necessarily have refused to depart, had it

it was an exercise of discretion or a legal properly perceived the facts or properly

determination regarding the court’s power understood the parameters of the

to depart or to apply a given Guideline Guidelines and how they should be applied

provision. Looking out for clearly in a given case. And in other cases, it is

e r r o n e o u s factual determinati o ns, clear from the record that the court felt

explicitly made by the sentencing court, in c o n s t ra i n e d b y t h e G u i d e li n e s,

order to be certain that the sentence did not misapprehending a lack of authority to

“result from” an incorrect application of depart, and it appears likely that the court

the Guidelines, is no more than a necessary would have departed, had it believed that

concomitant of our obligation to ensure it could do so. In these latter two

that we have jurisdiction where it is categories of cases, we must conclude that

precisely defined. And, we routinely do the sentence was imposed not as a result of

this in other types of cases as well. Cf. discretionary considerations, but rather as

Drakes v. Zimski, 240 F.3d 246, 247 (3d a result of an incorrect application of the

Cir. 2001) (holding that “we have Guidelines to the factual setting before the

jurisdiction to determine our jurisdiction” court. If a judge reasons that a factor

under a provision of the Immigration and necessary for departure is not present, but

Nationality Act that prevents our review of it either is present or is not a factor

appeals by aliens who are removable based necessary as a matter of law, how is

on aggravated felony convictions, and discretion exercised in making that

reviewing the facts presented to determine determination at all? The answer is simple

whether the petitioner’s crime was an – no discretion is exercised. Again, the

“aggravated felony”). statutory power of review requires that we

exercise our jurisdiction to review the

I suggest that, in order to determine sentence imposed on Minutoli as a result

whether we have jurisdiction to review the of an incorrect application of the

denial of a downward departure, we should Guidelines to the facts of her case.

ask the following question: if the District

Court had not made an erroneous factual II.

finding, would the result have been the The majority reads our court’s

same? If we can categorically answer precedents as clearly foreclosing review in

“yes,” then we are saying that the District cases like this one, and the Government

Court did not really care whether the facts strongly advocates that we are bound by

or the law “fit,” because the sentence was our precedent to find that we lack

imposed as a result of her decision not to jurisdiction here. I emphatically disagree

grant the departure in her discretion. In with that view. Although the case law

such a case, we are without jurisdiction to related to our appellate jurisdiction over

review. But in some cases, like this one, claims involving a district court’s denial of

we cannot tell whether the court would a defendant’s motion for a downward

14

departure is becoming increasingly challenge the result in Denardi in order to

confusing, I believe that a careful recognize that our decision there can (and

examination of the relevant decisions should) be read to support the view that we

actually supports a finding that we have have jurisdiction in the instant matter,

jurisdiction here. especially in light of our subsequent

decisions applying the rule we enunciated

The case that marks the starting there. As the majority described it, the

point for our jurisprudence in this area is scenario we considered in Denardi was not

United States v. Denardi, 892 F.2d 269 (3d one in which the District Court

Cir. 1990). In Denardi, a defendant misunderstood, based on a mistake about

appealed his sentence, arguing that his either the law or the facts, its legal

case involved certain mitigating factors authority to depart; rather, the Court was

that were not adequately considered by the empowered to grant a departure for that

Sentencing Commission in the Guidelines. defendant but elected not to do so. The

Id. at 270. We described the situation same has been true in many of our

before us as one where “the district court subsequent decisions applying Denardi.

did not misunderstand the law in applying

the sentencing guidelines,” and where the Since Denardi, we have been faced

court “had discretion to grant the with a multitude of appeals involving

[departure] request” but, “nevertheless, questions of our jurisdiction to review

refused to grant such relief.” Id. at 271.

On those facts, we held that we lack

appellate jurisdiction over an appeal that

the court’s decision, indicated his belief

“attacks the district court’s exercise of

that the majority decided a question that

discretion in refusing to reduce [a]

was not actually presented by that case.

sentence [ ] below the sen tencin g

See 892 F.2d at 272 (Becker, J.,

guidelines.” Id. at 272.

dissenting) (stating that the record shows

Although I admit to having some

that the district court “felt legally

doubt as to the soundness of certain

prohibited from departing,” while the

aspects of our reasoning in Denardi, as

majority decided “whether a

we ll as the accuracy of our

discretionary refusal to depart is

characterization of the District Court’s

appealable”). However, I will assume

statements there,9 it is not necessary to

here that the majority’s interpretation

was correct, and that the holding in

Denardi that we lacked jurisdiction is

9

Based on the portions of the District limited to situations in which a district

Court’s comments at the sentencing court in fact possesses and recognizes its

hearing that are quoted in the Denardi legal authority to depart on the facts

majority opinion, I am inclined to agree before it, but exercises its discretion in

with Judge Becker, who, dissenting from refusing to do so.

15

denials of requests for downward Only a fraction of these appeals have

departures in a variety of circumstances.10 resulted in precedential opinions of our

court,11 and, as I will discuss below, only

one of those opinions confronts a factual

10 scenario similar to the one presented by

For example, see United States v.

this case.

Gori, 324 F.3d 234, 239 (3d Cir. 2003)

(finding jurisdiction to review the denial

In addition to our own opinions

of a departure request based on the low

confronting this general issue, we are

quality of the drug involved); United

guided by the Supreme Court’s recent

States v. Dominguez, 296 F.3d 192, 194-

opinion commenting on the limits on

95 (3d Cir. 2002) (finding jurisdiction to

review the denial of a departure request

based on family circumstances); United offense).

States v. Castano-Vasquez, 266 F.3d

11

228, 231 (3d Cir. 2001) (finding I respectfully disagree with the

jurisdiction to review the denial of a majority’s explanation as to why many

departure request based on aberrant appeals raising issues related to our

behavior); United States v. McQuilkin, jurisdiction to review denials of

97 F.3d 723, 730 (3d Cir. 1996) (finding downward departures result in opinions

jurisdiction to review the denial of a that are not precedential. The majority

departure request based on physical asserts that this is due to the fact that

impairment); United States v. Mummert, “our law in this area is settled.” Maj. Op.

34 F.3d 201, 205 (3d Cir. 1994) at 6-7 n. 4. However, a perusal of just a

(remanding for clarification of the few of the host of not precedential

reasoning underlying the denial of a opinions on this subject reveals a trend of

departure); United States v. Love, 985 confusion and inconsistency. Compare,

F.2d 732, 734 n.3 (3d Cir. 1993) (finding e.g., United States v. Jackman, 2003 WL

jurisdiction to review the denial of a 21754978 (3d Cir. July 30, 2003) (not

departure request based on assistance to precedential) (reviewing for clear error a

state and local authorities); United States district court’s determination that the

v. Georgiadis, 933 F.2d 1219, 1224 (3d defendant’s mental problems were not

Cir. 1991) (finding no jurisdiction to sufficiently atypical to warrant a

review the denial of a departure where departure), with United States v. Love,

the record did not show that the court 2003 WL 21363404 (3d Cir. June 13,

failed to consider the request or 2003) (not precedential) (finding no

misunderstood its authority); United jurisdiction to review a district court’s

States v. Bierley, 922 F.2d 1061, 1066- determination that the conditions of the

67 (3d Cir. 1990) (finding jurisdiction to defendant’s pre-trial confinement were

review the denial of a departure request “not so harsh or inappropriate as to

based on the defendant’s role in the warrant a downward departure”).

16

appellate jurisdiction in cases involving error, McQuilkin, 97 F.3d at 730; 4) where

denials of departures. In Ruiz, the we cannot discern the basis for a district

Supreme Court stated that, while we do court’s refusal to depart, we will remand

not have jurisdiction “where the ground for clarification, Mummert, 34 F.3d at 205;

for appeal consists of a claim that the and 5) where it is clear that the sentence

district court abused its discretion in resulted from, or “rested on,” a district

refusing to depart,” we can review where court’s discretionary refusal to depart,

the district court’s “sentencing decision notwithstanding a factual or legal error, we

rested on a mistaken belief that it lacked do not have jurisdiction to review a claim

the legal power to grant a departure.” 536 based on that immaterial mistake, Ruiz,

U.S. at 627. This statement of the Court in 536 U.S. at 627. I think the majority

Ruiz does not imply any distinction based would not take issue with the first, second,

on whether the sentencing court’s and fourth of these “rules,” none of which

“mistaken belief” about its authority to directly impact this case. I will, therefore,

depart arises from a legal or factual error. focus exclusively on the third and the fifth,

Thus, I urge that it is controlling here. and I will explain how our court’s case law

leads me to find that such “rules” exist.

From the foregoing complicated set

of cases, I would posit that there are five The case that most clearly stands

basic “rules” that are fairly for the proposition that we can review for

straightforward: 1) where a district court clear error in a case like this one is

properly apprehends its authority to depart McQuilkin. There, in an opinion authored

in a given case, based on an accurate by now-Chief Judge Scirica, we found

perception of the facts and the law, we are jurisdiction and reviewed for clear error in

not empowered to review, Georgiadis, 933 a case that closely resembles the one

F.2d at 1222; 2) where a district court before us. 97 F.3d at 730. The departure

mistakenly concludes that it may not provision involved there was § 5H1.4,

depart in a given case, and its mistake is which allows a district court to depart

based on an incorrect understanding of the downward where the defendant puts forth

law or an improper interpretation of the evidence related to an extraordinary

Sentencing Guidelines’ dictates, we have physical impairment. Id. In finding that

jurisdiction to review the legal issues, and we had jurisdiction, we interpreted the

will do so de novo, Castano-Vasquez, 266 District Court’s sentencing decision as

F.3d at 229; 3) where a district court follows:

mistakenly concludes that it may not

depart in a given case, and its mistake is At sentencing, the district

based on an improper application of the court found M cQuilkin’s

Guidelines arising from a clearly condition was “not that type

erroneous determination of the facts, we of an impairment so severe

will review the factual findings for clear and complete that the

17

downward departure the defendant challenges as being

[was] . . . erroneous, that it cannot depart. None of

warranted.” The the cases finding that we lack jurisdiction

court’s determination pursuant to Denardi involve this precise

that McQuilkin did question. See, e.g., Georgiadis, 933 F.2d

not have the kind of at 1223 (stating that “the record does not

i m p a i r m e n t show the district court believed

described in § 5H1.4 erroneously it lacked authority to depart”).

which “warrants” a

departure could have The majority seeks to distinguish

meant one of two McQuilkin from the instant case, but it

things: that cannot truly do so in a way that is

M c Q uilkin’s meaningful. In McQuilkin, we were called

impairment was not upon to review a district court’s

extraordinary enough determination that McQuilkin’s physical

to allow the court to impairments were “not extraordinary

depart under the enough to allow the court to depart” at all

authority of § 5H1.4; under the relevant Guideline provision. 97

or that the nature of F.3d at 730. The defendant did not

the impairment was contend that the district court had applied

s u f f i c ie n tl y the incorrect Guideline provision or that it

extraord inary to had violated a federal statute; rather, he

allow the court to asserted that the district court’s factual

depart, but that the finding regarding the extent of his

court elected not to impairments, which rendered the relevant

depart on this Guideline provision inapplicable, was

occasion. We erroneous. The District Court determined

believe the court t h a t h is im p a ir m e n t s w e r e n ot

meant the former, in extraordinary enough to warrant a

w h i ch cas e, w e departure, and, on appeal, McQuilkin

review this finding argued that they were sufficiently

for clear error. extraordinary. McQuilkin has thus

established in the jurisprudence of our

McQuilkin, 97 F.3d at 730 (emphasis court that the seriousness of an

added). Importantly, McQuilkin appears impairment, or, here, the severity of

to be the only case in which our court has physical threats, is a factual finding that

ever considered whether and how we we review for clear error. How, then, can

should engage in our review in a scenario we say that a preliminary determination as

like this one, where the District Court to the existence of an impairment or threat

concludes, based on factual findings that is anything other than a factual finding that

18

we must review for clear error? Here, as we noted above, the

District Court essentially concluded that

The most striking flaw in the Minutoli failed to adduce evidence of the

majority’s attempt to distinguish type of threats necessary to support a

McQuilkin is its complete failure to finding that any duress or coercion in her

acknowledge the standard of review that case somehow rendered her situation

we applied there. We stated in McQuilkin, extraordinary enough to warrant a

clearly and simply, that “we [would] departure. This was erroneous. Applying

review [the challenged] finding for clear our own case law, then, leads to a finding

error.” Id. We obviously were not that we do have jurisdiction to review for

reviewing a purely legal conclusion, as the clear error under these circumstances.

majority contends, because our review was

for clear error, not de novo. Thus, we The majority seems inclined to

characterized the challenge brought before abruptly end its inquiry into the reasoning

us in McQuilkin as one directed at a of the District Court upon noticing its use

factual determination, rather than a pure of the phrase “while I recognize my ability

matter of law, but we did not hesitate to to depart.” However, our interpretation of

exercise our jurisdiction. The use of the the basis for the District Court’s decision

clear error standard confirms my view that cannot be this superficial. 12 The rest of the

McQuilkin dictates a finding that we have Court’s observations indicate that it

jurisdiction to review challenges to a actually concluded that the testimony

district court’s factual findings that offered by Minutoli would not support or

support a denial of a downward departure. authorize a departure under § 5K2.12 in

Given McQuilkin, we have jurisdiction to this case. Where a court determines that

second-guess a district court’s factual the preconditions for departing under a

finding regarding the extraordinary nature given provision of the Sentencing

of a defendant’s situation, essentially Guidelines are not satisfied, and where this

reviewing the court’s application of the determination has motivated the court in

Guidelines in the factual setting presented its sentencing decision, the subsequent

to us. How, then, can we not be

empowered to second-guess the court’s

finding regarding the presence or absence 12

The Government urged at oral

in the record of evidence offered by a

argument, and again by way of a

defendant where, as here, it led to an

supplemental letter brief filed after the

application of the Guideline in the factual

argument, that our precedents preclude

setting presented that was clearly

us from exercising jurisdiction in every

incorrect? Our statutory grant of

case where a district court uses this type

jurisdiction, in addition to our decision in

of standard language to reference its

McQuilkin, dictates that we must engage

“discretion” under the Guidelines. This

in such review.

position is simply incorrect.

19

denial cannot be an exercise of incorrect application of the Sentencing

“discretion.” The court is simply not Guidelines;” 2) “the refusal to depart

authorized to exercise its discretion in such otherwise violates the law;” or 3) “the

a case. Under these circumstances, I district court mistakenly believed that it

believe McQuilkin makes it clear that we lacked the discretion to depart.” Id. The

can review the underlying factual findings court also noted its “steadfast[] refus[al] to

for clear error, and, indeed, we are review denials of downward departures

obligated to do so. where the district court did not

misunderstand its legal authority to

III. depart.” Id. at 338. Summing up its

Finally, the majority has indicated position, the court stated: “An otherwise

that, after considering the divergent proper sentence is not a misapplication of

opinions of the Courts of Appeals for the the Sentencing Guidelines simply because

First and District of Columbia Circuits the district court, as a matter of discretion,

regarding the precise issue that we decide refuses to impose a lesser sentence than

here, it is persuaded to adopt the reasoning the law authorizes, even if its factual

expressed by the First Circuit in United reasons for doing so are mistaken.” Id. at

States v. Dewire, 271 F.3d 333 (1st Cir. 339. As a result, the court determined that

2001). In Dewire, the defendant had pled it lacked jurisdiction over Dewire’s appeal.

guilty to “using a means of interstate Id. at 340.

commerce to induce a minor to engage in

a sexual act.” Id. at 335. The district court But it would be wrong to conclude

denied his motion for a downward that the actual result in Dewire, given the

departure based on aberrant behavior. Id. facts presented there, is necessarily

On appeal, Dewire contended that the inconsistent with what I propose is the

court’s refusal to depart “was based on an proper analysis. Setting aside the broader

erroneous factual finding that he had holding of the First Circuit, I would agree

downloaded child pornography from the that Dewire’s sentence should have been

Internet.” Id. The First Circuit held that it affirmed based on the fifth “rule” I posited

lacked jurisdiction to review Dewire’s above. That is, Dewire provides an

claim related to the downward departure. excellent example of a case in which a

Id. fact-finding error was not material to the

In so concluding, the court sentencing decision, leaving us without

explained its view that there are three jurisdiction to review under § 3742(a)(2),

exceptions to the general rule that a district because the court’s sentencing discussion

court’s refusal to depart is discretionary actually indicated that its decision was not

and not appealable. Id. at 337. Those influenced by the finding that the

exceptions, describing cases in which defendant challenged on appeal. Id. at

review is permissible, are claims that: 1) 336. The trial judge explicitly stated at

“the refusal to depart [resulted from] an sentencing that even if the facts were to fit

20

within the relevant departure provision, he of departure for clear error on the language

would still not be inclined to depart due to of 18 U.S.C. §§ 3742(a)(2) and 3742(e).

the nature of Dewire’s offense. Id. In The court agreed that it would lack

such a case, I would agree that we do not jurisdiction in a case where the district

have jurisdiction to review because it is court “correctly understood the Sentencing

clear that the sentence did not result from Guidelines and the evidence, knew [it]

the allegedly mistaken factual finding. could depart, and yet decided to stick to

the Guideline range.” Id. at 1343.

The most relevant and persuasive However, the court also observed that,

opinion on the issue before us, dealing where “a district judge sticks to the

with a very similar factual and procedural Guideline range because he mistakenly

context, is the decision of the Court of believes he lacks authority to do otherwise,

Appeals for the District of Columbia in his sentencing decision is reviewable on

United States v. Sammoury, 74 F.3d 1341 appeal.” Id. at 1344. Because such a

(D.C. Cir. 1996). In Sammoury, the court situation exists where “clearly erroneous

concluded that it did have jurisdiction to factual mistakes [are] used in determining

review a challenge to the factual findings whether to depart,” the court concluded

underlying a sentencing decision. There, that § 3742(a)(2) provides a court of

the defendant had pled guilty to bank fraud appeals with the power to review

based on her misappropriation of funds challenges to the sentencing court’s factual

that were donated to her nonprofit findings. Id. at 1345. The court based this

employer. Id. at 1341. The district court conclusion on its interpretation of § 3742,

denied her motion seeking a downward as well as its view that “[i]t is no more an

departure based on coercion, duress, and infringement on the discretion of trial

diminished capacity due to abuse by her judges to set aside a sentence when the

husband. Id. On appeal, Sammoury refusal to depart rests on a clearly

asserted that the sentencing judge erroneous factual mistake than to set aside

misapprehended the evidence offered in a sentence when the refusal stems from a

support of the departure motion and misinterpretation of the Guidelines.” Id.

erroneously concluded that the abuse was Upon reaching this conclusion, the court

not the cause of Sammoury’s crime. Id. at went on to review the merits of

1343, 1346. After a lengthy discussion Sammoury’s claim, and it ultimately

regarding appellate jurisdiction over such determined that the district court’s findings

a claim, the D.C. Circuit determined that it were not clearly erroneous. Id. at 1346.

was empowered to review the sentence.

Id. at 1345. Given my reading of our precedents

described above, I believe that the D.C.

The Sammoury court based its Circuit’s opinion in Sammoury is quite

conclusion that it had jurisdiction to consistent with our jurisprudence and

review factual findings underlying a denial supp orts our review power here.

21

However, a review of the case law of the the Courts of Appeals for the D.C.,

other courts of appeals reveals that there is Second, Fifth, and Ninth Circuits have

probably a circuit split on the precise issue reviewed for clear error under similar

before us here.13 The Courts of Appeals circumstances. See Sammoury, 74 F.3d at

for the First and Fourth Circuits would 1343-45 (prov iding a n exte nsiv e

apparently dismiss this case based on a discussion of the statutory basis for

lack of appellate jurisdiction. See United reviewing findings of fact underlying a

States v. Underwood, 970 F.2d 1336 (4th denial of departure for clear error); United

Cir. 1992); United States v. Pierro, 32 F.3d States v. Ardoin, 19 F.3d 177, 181 (5th

611 (1st Cir. 1994).14 On the other hand, Cir. 1994) (“We review the findings of

fact under the ‘clearly erroneous’ standard,

13

but legal application of the Guidelines is

I say “probably” because there is a reviewed de novo.”); United States v.

lack of consistency in the reasoning of Mickens, 977 F.2d 69, 72 (2d Cir. 1992)

some courts, as noted infra in note 8. (reviewing the district court’s factual

Additionally, some courts, including our findings for clear error where the appeal

own in McQuilkin, have apparently challenged the denial of a downward

adopted a view with minimal discussion departure sought based on various

of the issue. mitigating circumstances); United States v.

14 Roe, 976 F.2d 1216, 1217 (9th Cir. 1992)

While Minutoli indicates that the

(“We review for clear error the [district]

Courts of Appeals for the Seventh and

court’s findin g that a partic ular

Eleventh Circuits would also find that

circumstance was not extraordinary”).

they lack jurisdiction in a case like this

one, I do not find that to be certain. The

I submit that our court is most

Court of Appeals for the First Circuit

properly aligned with the latter four

also notes cases from those courts of

circuits, in part because I find the

appeals in support of its position in

reasoning of those courts – and particularly

Dewire. 271 F.3d at 338 n.5 (citing

that of the District of Columbia Circuit in

United States v. Steels, 38 F.3d 350 (7th

Sammoury – to be more persuasive, but

Cir. 1994), and United States v.

also because I believe that our decision in

Patterson, 15 F.3d 169 (11th Cir. 1994)).

McQuilkin has already placed us on that

However, those cases did not involve

side of the issue. I further submit that the

allegations of clearly erroneous factual

findings; rather, the defendants in Steels

and Patterson apparently challenged the

district courts’ understanding of the yet been squarely presented with it.

relevant laws and Guideline provisions. Indeed, even the Dewire court noted

It thus remains unclear how those courts conflicting authority from the Seventh

would decide the jurisdictional question Circuit on this question. 271 F.3d at 338

presented in this case, as they have not n.5.

22

majority view parts company with discretionary call was actually made unless

McQuilkin and, as a result, runs afoul of it is clear from the record that the

our court’s Internal Operating Procedures, sentencing decision did not result from

§ 9.1. that determination. And where, as here,

the district court’s determination that it

IV. lacks authority is based upon a clearly

In light of the foregoing discussion, erroneous factual finding, we have

I cannot agree that we lack jurisdiction to jurisdiction to review and correct that error

consider Minutoli’s appeal. Where it is pursuant to both the relevant statute and

based on a plainly mistaken determination our own case law. The majority concludes

of the facts, a district court’s decision that otherwise and refuses to address the clear

a downward departure is not warranted or error in the factual findings underlying the

authorized under the Guidelines cannot be District Court’s sentencing decision here.

insulated from review. As I read the Therefore, I must respectfully dissent, and

relevant authority, there is neither a I strongly suggest that, in order for the

statutory nor a binding precedential majority’s view to stand, this case must be

mandate that we lack jurisdiction in such a addressed by the court en banc.

case. We should remain vigilant as we

examine and construe the language used

by the district courts in reaching

sentencing decisions, as the ramifications

have serious implications for criminal

defendants. Specifically, we must

carefully distinguish those situations in

which a district court would be authorized

to exercise its discretion from those in

which it is not actually empowered to do

so.

We cannot simply focus on a

court’s use of a magic phrase, such as “I

recognize that I have discretion under the

Guidelines,” and neglect to consider the

context in which such a statement is made.

The District Court here used such a

standard phrase as it noticed its general

authority under the Guidelines. But where,

as here, a district court proceeds to make a

determination that the requirements of a

given departure provision are not met in a

given case, we must conclude that no

23