United States v. Mark Albritton

*713 KAREN LeCRAFT HENDERSON, Circuit Judge,

concurring:

I write separately because I believe Albritton’s departure request, made for the first time on appeal, is not reviewable. We have never held, nor should we, that a defendant who does not even make a departure request at. sentencing is entitled to plain error review.

Congress has granted appellate courts a “narrow scope of review,” Williams v. United States, 503 U.S. 193, 199 , 112 S.Ct. 1112, 1118 , 117 L.Ed.2d 341 (1992), which entitles the defendant to appeal his sentence if it was imposed in violation of law or as a result of the incorrect application of the guidelines. 18 U.S.C. § 3742 (a). We do not, however, review a “court’s discretionary decision that the particular circumstances of a given case do not warrant a departure.” United States v. Pinnick, 47 F.3d 434, 439 (D.C.Cir.1995); see United States v. Ortez, 902 F.2d 61, 64 (D.C.Cir.1990); Jefri Wood and Diane Sheehey, Guideline Sentencing: An Outline of Appellate Case Law on Selected Issues 224 (1995) (“Every circuit has held that, unless the decision involves an incorrect application of the Guidelines or is otherwise in violation of the law, a district court’s discretionary refusal to depart downward is not appeal-able.”). Nor do we review the extent of a downward departure. United States v. Hazel, 928 F.2d 420, 423 (D.C.Cir.1991). If the defendant advances a departure argument on appeal different from the departure argument made to the trial court, we review the district court’s denial for “plain error” only. United States v. Dawson, 990 F.2d 1314, 1316 (D.C.Cir.1993) (plain error review of district court’s denial of section 5K2.0 departure where section 5K1.1 relied' on below raised for first time on appeal); United States v. Watson, 57 F.3d 1093 , 1097 n. 6 (D.C.Cir.1995) (plain error review of departure denial where basis of departure applicability changed on appeal); cf. United States v. Bradshaw, 935 F.2d 295, 303 (D.C.Cir. 1991) (“As with all other issues, in order to preserve for appeal an argument for departure from the guidelines, a defendant must press that specific argument before the district court.”) (concluding defendant’s section 5K2.0 argument not reviewable, although raised at sentencing, because defendant did not specify factual basis for request below); see generally United States v. Saro, 24 F.3d 283, 286-88 (D.C.Cir.1994) (describing plain error review in sentencing context).

Plain error “review” of a departure request made for the first time on appeal upsets the intended sentencing scheme. 1 See Foster, 988 F.2d at 209 (departure request based on inadequacy of criminal history category unreviewable). The statute grants the government “reasonable” review of a decision to depart downward and the defendant “reasonable” review of a decision to depart upward. 18 U.S.C. § 3742 . But a district court’s decision to deny a departure request in its discretion is unreviewable. Ortez, 902 F.2d at 64 . By conducting any review of a defendant’s departure claim never made to the district court, we unintentionally reward the practice of holding back from the district court. See also Hazel, 928 F.2d at 424 . A defendant might well decide to save a sentencing argument until he appeals rather than risk an unreviewable denial. To protect the district court’s broad authority to decide departure issues, we must ensure that the defendant bring those issues to its attention to begin with. 2 I would hold that, because *714 Albritton failed to make his departure argument below, he has waived the issue on appeal. Accordingly, I would dismiss that portion of his appeal.

. Indeed, "review” may be a misnomer inasmuch as there is nothing the district court did nor, on request, failed to do for us to review.'

. Albritton asserts that he is entitled to review because he challenges the district court's understanding of its sentencing authority. No one disputes our jurisdiction to review a failure to depart that is based on a misapplication of the guidelines or other legal error. See 18 U.S.C. § 3742 (c); United States v. Ortez, 902 F.2d 61, 64 (D.C.Cir.1990); United States v. Johnson, 49 F.3d 766, 768 (D.C.Cir.1995). But to conclude that the trial court did not commit plain legal error by not sua sponte exercising its unreviewable discretion to downward depart makes no sense to me. Albritton should not be able to ask us to speculate on the district court’s disposition of a request had he made one, a disposition that may or may not have been reviewable depending on the court’s rationale. See United States v. Hazel, 928 F.2d 420, 424 (D.C.Cir.1991) (“[Sjhould we remand a downward departure decision to the trial court, the sentencing judge could easily resolve the ... problem by providing for no departure at all — a decision we would be unable to review.”).