United States v. Lisa Ann Minutoli

RENDELL, Circuit Judge,

Dissenting.

The line between an unreviewable discretionary refusal to depart and a legal or fact-based determination that the court lacks the authority to depart in a given case is often hard to discern. This is especially so given the language that district courts are routinely using in explaining their sentencing decisions. The District Court in the instant case made the following statement regarding the departure under § 5K2.12 of the Sentencing Guidelines:

And with the coercion and duress, additionally, while I recognize my ability to depart under 5K2.12, without threat of physical injury resulting from unlawful actions of a third party, which I don’t believe was in the testimony, or substantial damage to property resulting from unlawful action of a third party, the coercion and duress does not rise to the level that warrants departure.

In. finding that we lack jurisdiction, the majority focuses on the Court’s acknowledgment of its “ability to depart,” concluding that the denial in this case was discretionary. I, on the other hand, believe that the District Court’s determination was based on its erroneous factual finding that there was no record evidence of threats of physical injury or physical damage to property. Therefore, rather than exercising its discretion, I submit that the Court was actually concluding that it lacked the authority to grant a § 5K2.12 departure based on the facts of this case.

Reading the Court’s reasoning in toto, it becomes apparent that the District Court’s statement regarding its “ability” to depart was not a legal conclusion; rather, the statement was a reference to the fact that the departure provision for coercion or duress in § 5K2.12 was potentially applicable here. However, the Court went on to conclude that the provision was not applicable, based on the lack of testimony regarding a factor that constitutes a prerequisite to its application. But, as Minutoli correctly points out, such testimony was presented. Accordingly, the sentence imposed “resulted from” an incorrect application of the Guidelines, and we can review it pursuant to 18 U.S.C. § 3742 (a)(2).

Thus, I disagree with the majority’s conclusion that we cannot review the denial of *244 a departure in a case such as this, where the District Court acknowledged its general power under the Guidelines but then concluded that the case before it was not one in which a departure was authorized. In fact, I find a statutory foundation, as well as a basis in our own jurisprudence, for reviewing the factual findings supporting such a conclusion for clear error. Additionally, I derive guidance and support for this view in the well-reasoned decisions of some of our sister courts of appeals that have confronted this issue. Based on my reading of these cases, I conclude that we can, and should, assume jurisdiction over appeals like this one, involving allegations that the district court based its denial of a departure on clearly erroneous factual findings.

I.

I will begin by reviewing the statutory basis for our jurisdiction over criminal appeals challenging sentencing decisions, positing when and how we should exercise our jurisdiction in cases involving denials of downward departures. Then, in Parts II and III, I will discuss the case law that supports this reasoning.

Under 18 U.S.C. § 3742 (a)(1) and (2), we are empowered to review sentences that are imposed “in violation of law” or “as a result of an incorrect application of the sentencing guidelines.” Minutoli does not contend that her sentence violates any law under (a)(1). Rather, she argues that the District Court incorrectly applied the Sentencing Guidelines in that it clearly erred when it considered whether certain facts were present in order to qualify her for a departure under the pertinent Guideline provision, specifically, whether the offense was caused by coercion or duress as contemplated by § 5K2.12 of the Guidelines. That provision notes that this departure is reserved for cases in which “a threat of physical injury, substantial damage to property or similar injury resulting from the unlawful action of a third party” caused the defendant to commit the offense, but where the circumstances did not amount to a complete duress defense. The record contained evidence that Minu-toli’s boyfriend threw a stereo at her, threatened to kill her if she would not transport the drugs, informed her that he would have her followed throughout her trip to Europe, and intimidated her with a gun in their bedroom the night before she left. Yet the District Court ignored this evidence, essentially saying that it was not there.

Therefore, our jurisdiction to review this ease is based on § 3742(a)(2). This is because when a district court makes an erroneous factual finding that is relevant to its determination as to whether the departure provision applies, the sentence has necessarily been imposed as a result of an incorrect application of the Guidelines. Here, the District Court incorrectly ignored evidence relevant to the application of the Guideline provision concerning coercion and duress. How can the Guideline have been properly applied in Minutoli’s case where the District Court made an erroneous factual finding that resulted in the Guideline’s not being applied at all, whereas a correct finding could have rendered the coercion or duress departure provision applicable to her situation? Under the statutory review authority contained in § 3742(a)(2), we have jurisdiction to monitor the District Court’s application of the Guidelines, and we should do so here.

The majority seeks to draw a bright line between legal and factual errors, but such a distinction has no significance when considering the statutorily-defined bounds of our jurisdiction. The statutory power to review simply is not limited to cases involving challenges to a district court’s legal *245 conclusions. Rather, we are to review if there appears either a violation of law or an incorrect application of the Sentencing Guidelines. The statute does not limit our jurisdiction in situations of “incorrect application” in the way the majority suggests; it does not remove from the scope of our review power situations in which the incorrect application of the Guidelines has occurred because of an erroneous factual finding. The majority would read such a caveat into the statute, but it just is not there. 7

This does not mean that all departure challenges are reviewable. For instance, § 3742(a) does not give us jurisdiction to review in a case where a defendant has succeeded in obtaining a downward departure, but argues that the departure should have been larger than it was. There really is no correct or incorrect way to apply the' Guidelines once a departure provision is deemed satisfied in a particular case, and the district court clearly does have discretion to depart from the relevant range to the degree it sees fit. And, we cannot review a purely discretionary refusal to depart 8 where the district court’s view as to its legal power to depart under the Guidelines was correct — in other words, where the court correctly determines the relevant facts and applies the appropriate Guideline principles, but declines to depart. See United States v. Ruiz, 536 U.S. 622, 627 , 122 S.Ct. 2450 , 153 L.Ed.2d 586 (2002) (listing cases from every court of appeals reaching this conclusion). Similarly, where a district court does make a legal or factual error, but nonetheless makes clear that the sentence did not result from that error because, even if the departure provision “fit,” the court would not be inclined to grant it, we could not exercise our power of review. But we can, and should, review refusals to depart where the district court makes an error in applying the Guidelines, whether due to an erroneous factual determination or a misapplication of law to the facts, whereby the district court' mistakenly concludes that it is without the specific authority to depart in the case before it, and the sentence has been imposed as a result of that error. *246 Such cases fall squarely within § 8742(a)(2).

The Guidelines grant district courts the authority to depart in cases where the facts “fit” within one of the relevant provisions, such as the provisions of Chapter 5 implicated in this case. Here, under § 5K2.12, the trial court only has the authority to depart downward if the situation involves threats of physical injury or substantial property damage, and if those threats caused the defendant to commit the relevant offense. So where the situation does not involve any threats of that sort, a district court does not have the power to invoke § 5K2.12 and depart downward.

Here, the Court made a clearly erroneous factual finding when it stated that there was no testimony of physical threats or violence in the record. As noted above, both Minutoli and Dr. Bernstein testified regarding various instances of threats and violence that occurred in the days leading up to Minutoli’s trip. While there might be legitimate reasons for denying a departure in this case, even in the face of these threats and acts of violence, it appears as though the District Court ignored or forgot about this testimony altogether and based its ruling on the lack of such evidence. Accordingly, we have jurisdiction to review under § 3742(a)(2).

The majority’s fear that a finding of jurisdiction here would force us to constantly review the merits of district court rulings in order to determine our jurisdiction is unfounded. We are already in the business of doing so, to a certain extent, every time we examine a district court’s sentencing ruling to decide whether it was an exercise of discretion or a legal determination regarding the court’s power to depart or to apply a given Guideline provision. Looking out for clearly erroneous factual determinations, explicitly made by the sentencing court, in order to be certain that the sentence did not “result from” an incorrect application of the Guidelines, is no more than a necessary concomitant of our obligation to ensure that we have jurisdiction where it is precisely defined. And, we routinely do this in other types of cases as well. Cf. Drakes v. Zimski, 240 F.3d 246, 247 (3d Cir.2001) (holding that “we have jurisdiction to determine our jurisdiction” under a provision of the Immigration and Nationality Act that prevents our review of appeals by aliens who are removable based on aggravated felony convictions, and reviewing the facts presented to determine whether the petitioner’s crime was an “aggravated felony”).

I suggest that, in order to determine whether we have jurisdiction to review the denial of a downward departure, we should ask the following question: if the District Court had not made an erroneous factual finding, would the result have been the same? If we can categorically answer “yes,” then we are saying that the District Court did not really care whether the facts or the law “fit,” because the sentence was imposed as a result of her decision not to grant the departure in her discretion. In such a case, we are without jurisdiction to review. But in some cases, like this one, we cannot tell whether the court would necessarily have refused to depart, had it properly perceived the facts or properly understood the parameters of the Guidelines and how they should be applied in a given case. And in other cases, it is clear from the record that the court felt constrained by the Guidelines, misapprehending a lack of authority to depart, and it appears likely that the court would have departed, had it believed that it could do so. In these latter two categories of cases, we must conclude that the sentence was imposed not as a result of discretionary considerations, but rather as a result of an *247 incorrect application of the Guidelines to the factual setting before the court. If a judge reasons that a factor necessary for departure is not present, but it either is present or is not a factor necessary as a matter of law, how is discretion exercised in making that determination at all? The answer is simple — no discretion is exercised. Again, the statutory power of review requires that we exercise our jurisdiction to review the sentence imposed on Minutoli as a result of an incorrect application of the Guidelines to the facts of her case.

II.

The majority reads our court’s precedents as clearly foreclosing review in cases like this one, and the Government strongly advocates that we are bound by our precedent to find that we lack jurisdiction here. I emphatically disagree with that view. Although the case law related to our appellate jurisdiction over claims involving a district court’s denial of a defendant’s motion for a downward departure is becoming increasingly confusing, I believe that a careful examination of the relevant decisions actually supports a finding that we have jurisdiction here.

The case that marks the starting point for our jurisprudence in this area is United States v. Denardi, 892 F.2d 269 (3d Cir.1990). In Denardi a defendant appealed his sentence, arguing that his case involved certain mitigating factors that were not adequately considered by the Sentencing Commission in the Guidelines. Id. at 270 . We described the situation before us as one where “the district court did not misunderstand the law in applying the sentencing guidelines,” and where the court “had discretion to grant the [departure] request” but, “nevertheless, refused to grant such relief.” Id. at 271 . On those facts, we held that we lack appellate jurisdiction over an appeal that “attacks the district court’s exercise of discretion in refusing to reduce [a] sentence! ] below the sentencing guidelines.” Id. at 272 .

Although I admit to having some doubt as to the soundness of certain aspects of our reasoning in Denardi as well as the accuracy of our characterization of the District Court’s statements there, 9 it is not necessary to challenge the result in Denar-di in order to recognize that our decision there can (and should) be read to support the view that we have jurisdiction in the instant matter, especially in light of our subsequent decisions applying the rule we enunciated there. As the majority described it, the scenario we considered in Denardi was not one in which the District Court misunderstood, based on a mistake about either the law or the facts, its legal authority to depart; rather, the Court was empowered to grant a departure for that defendant but elected not to do so. The same has been true in many of our subsequent decisions applying Denardi .

Since Denardi , we have been faced with a multitude of appeals involving questions of our jurisdiction to review denials of *248 requests for downward departures in a variety of circumstances. 10 Only a fraction of these appeals have resulted in prece-dential opinions of our court, 11 and, as I will discuss below, only one of those opinions confronts a factual scenario similar to the one presented by this case.

In addition to our own opinions confronting this general issue, we are guided by the Supreme Court’s recent opinion commenting on the limits on appellate jurisdiction in cases involving denials of departures. In Ruiz , the Supreme Court stated that, while we do not have jurisdiction “where the ground for appeal consists of a claim that the district court abused its discretion in refusing to depart,” we can review where the district court’s “sentencing decision rested on a mistaken belief that it lacked the legal power to grant a departure.” 536 U.S. at 627 , 122 S.Ct. 2450 . This statement of the Court in Ruiz does not imply any distinction based on whether the sentencing court’s “mistaken belief’ about its authority to depart arises from a legal or factual error. Thus, I urge that it is controlling here.

From the foregoing complicated set of cases, I would posit that there are five basic “rules” that are fairly straightforward: 1) where a district court properly apprehends its authority to depart in a given case, based on an accurate perception of the facts and the law, we are not empowered to review, Georgiadis, 933 F.2d at 1222; 2) where a district court mistakenly concludes that it may not depart in a given case, and its mistake is based on an incorrect understanding of the law or an improper interpretation of the Sentencing Guidelines’ dictates, we have jurisdiction to review the legal issues, and will do so de novo, Castano-Vasquez, 266 F.3d at 229; 3) where a district court mistakenly concludes that it may not de *249 part in a given case, and its mistake is based on an improper application of the Guidelines arising from, a clearly erroneous determination of the facts, we will review the factual findings for clear error, McQuilkin, 97 F.3d at 730; 4) where we cannot discern the basis for a district court’s refusal to depart, we will remand for clarification, Mummert, 34 F.3d at 205; and. 5) where it is clear that the sentence resulted from, or “rested on,” a district court’s discretionary refusal to depart, notwithstanding a factual or legal error, we do not have jurisdiction to review a claim based on that immaterial mistake, Ruiz, 536 U.S. at 627 , 122 S.Ct. 2450 . I think the majority would not take issue with the first, second, and fourth of these “rules,” none of which directly impact this case. I will, therefore, focus exclusively on the third and the fifth, and I will explain how our court’s case law leads me to find that such “rules” exist.

The case that most clearly stands for the proposition that we can review for clear error in a case like this one is McQuilkin. There, in an opinion authored by now-Chief Judge Scirica, we found jurisdiction and reviewed for clear error in a case that closely resembles the one before us. 97 F.3d at 730. The departure provision involved there was § 5H1.4, which allows a district court to depart downward where the defendant puts forth evidence related to an extraordinary physical impairment. Id. In finding that we had jurisdiction, we interpreted the District Court’s sentencing decision as follows:

At sentencing, the district court found McQuilkin’s condition was “not that type of an impairment so severe and complete that the downward departure [was] ... warranted.” The court’s determination that McQuilkin did not have the kind of impairment described in § 5H1.4 which “warrants” a departure, could have meant one of two things: that McQuilkin’s impairment was not. extraordinary enough to allow the court to depart under the -authority of § 5H14; or that the nature of the impairment was sufficiently extraordinary to allow the court to depart, but that the court' elected not to depart on this occasion. We believe the court meant the former, in which case, we revieiO'this finding for clear error.

McQuilkin, 97 F.3d at 730 (emphasis added). Importantly, McQuilkin appears to be the only case in which our court has ever considered whether and how we should engage in our review in a scenario like this one, where the District Court concludes, based on factual findings that the defendant challenges as being erroneous, that it cannot depart. None of the cases finding that we lack jurisdiction pursuant to Denardi involve this precise .question. See, e.g., Georgiadis, 933 F.2d at 1223 (stating that “the record does not show the district court believed erroneously it lacked authority to depart”).

The majority seeks to distinguish McQuilkin from the instant case, but it cannot truly do so in a way that is meaningful. In McQuilkin, we were called upon to review a district court’s determination that McQuilkin’s physical impairments were “not extraordinary enough to allow the court to depart” at all under the relevant Guideline provision.. 97 F.3d at 730. The defendant did not contend that the district court had applied the incorrect Guideline provision or that it had violated a federal statute; rather, he asserted that the district court’s factual finding regarding the extent of his impairments, which rendered the relevant Guideline provision inapplicable, was erroneous. The District Court determined that his impairments were not extraordinary enough to warrant a departure, and, on appeal, McQuilkin argued that they were sufficiently extraor *250 dinary. McQuilkin has thus established in the jurisprudence of our court that the seriousness of an impairment, or, here, the severity of physical threats, is a factual finding that we review for clear error. How, then, can we say that a preliminary determination as to the existence of an impairment or threat is anything other than a factual finding that we must review for clear error?

The most striking flaw in the majority’s attempt to distinguish McQuilkin is its complete failure to acknowledge the standard of review that we applied there. We stated in McQuilkin, clearly and simply, that “we [would] review [the challenged] finding for clear error.” Id. We obviously were not reviewing a purely legal conclusion, as the majority contends, because our review was for clear error, not de novo. Thus, we characterized the challenge brought before us in McQuilkin as one directed at a factual determination, rather than a pure matter of law, but we did not hesitate to exercise our jurisdiction. The use of the clear error standard confirms my view that McQuilkin dictates a finding that we have jurisdiction to review challenges to a district court’s factual findings that support a denial of a downward departure. Given McQuilkin, we have jurisdiction to second-guess a district court’s factual finding regarding the extraordinary nature of a defendant’s situation, essentially reviewing the court’s application of the Guidelines in the factual setting presented to us. How, then, can we not be empowered to second-guess the court’s finding regarding the presence or absence in the record of evidence offered by a defendant where, as here, it led to an application of the Guideline in the factual setting presented that was clearly incorrect? Our statutory grant of jurisdiction, in addition to our decision in McQuilkin, dictates that we must engage in such review.

Here, as we noted above, the District Court essentially concluded that Minutoli failed to adduce evidence of the type of threats necessary to support a finding that any duress or coercion in her case somehow rendered her situation extraordinary enough to warrant a departure. This was erroneous. Applying our own case law, then, leads to a finding that we do have jurisdiction to review for clear error under these circumstances.

The majority seems inclined to abruptly end its inquiry into the reasoning of the District Court upon noticing its use of the phrase “while I recognize my ability to depart.” However, our interpretation of the basis for the District Court’s decision cannot be this superficial. 12 The rest of the Court’s observations indicate that it actually concluded that the testimony offered by Minutoli would not support or authorize a departure under § 5K2.12 in this case. Where a court determines that the preconditions for departing under a given provision of the Sentencing Guidelines are not satisfied, and where this determination has motivated the court in its sentencing decision, the subsequent denial cannot be an exercise of “discretion.” The court is simply not authorized to exercise its discretion in such a case. Under these circumstances, I believe McQuilkin makes it clear that we can review the underlying factual findings for clear error, and, indeed, we are obligated to do so.

III.

Finally, the majority has indicated that, after considering the divergent opinions of *251 the Courts of Appeals for the First and District of Columbia Circuits regarding the precise issue that we decide here, it is persuaded to adopt the reasoning expressed by the First Circuit in United States v. Dewire, 271 F.3d 333 (1st Cir. 2001). In Dewire , the defendant had pled guilty to “using a means of interstate commerce to induce a minor to engage in a sexual act.” Id. at 335 . The district court denied his motion for a downward departure based on aberrant behavior. Id. On appeal, Dewire contended that the court’s refusal to depart “was based on an erroneous factual finding that he had downloaded child pornography from the Internet.” Id. The First Circuit held that it lacked jurisdiction to review Dewire’s claim' related to the downward departure. Id.

In so concluding, the court explained its view that there are three exceptions to the general rule that a district court’s refusal to depart is discretionary and not appeal-able. Id. at 337 . Those exceptions, describing cases in which review is permissible, are claims that: 1) “the refusal to depart [resulted from] an incorrect application of the Sentencing Guidelines;” 2) “the refusal to depart otherwise violates the law;” or 3) “the district court mistakenly believed that it lacked the discretion to depart.” Id. The court also noted its “steadfast[] refus[al] to review denials of downward departures where the district court did not misunderstand its legal authority to depart.” Id. at 338 . Summing up its position, the court stated: “An otherwise proper sentence is not a misapplication of the Sentencing Guidelines simply because the district court, as a matter of discretion, refuses to impose a lesser sentence than the law authorizes, even if its factual reasons for doing so are mistaken.” Id. at 339 . As a result, the court determined that it lacked jurisdiction over De-wire’s appeal. Id. at 340 .

But it would be wrong to conclude that the actual result in Dewire , given the facts presented there, is necessarily inconsistent with what I propose is the proper analysis. Setting aside the broader holding of the First Circuit, I would agree that Dewire’s sentence should have been affirmed based on the fifth “rule” I posited above. That is, Dewire provides an excellent example of a case in which a fact-finding error was not material to the sentencing decision, leaving us without jurisdiction to review under § 3742(a)(2), because the court’s sentencing discussion actually indicated that its decision was not influenced by the finding that the defendant challenged on appeal. Id. at 336. The trial judge explicitly stated at sentencing that even if the facts were to fit within the relevant departure provision, he would still not be inclined to depart due to the nature of Dewire’s offense. Id. In such a case, I would agree that we do not have jurisdiction to review because it is clear that the sentence did not result from the allegedly mistaken factual finding.

The most relevant and persuasive opinion on the issue before us, dealing with a very similar factual and procedural context, is the decision of the Court of Appeals for the District of Columbia in United States v. Sammoury, 74 F.3d 1341 (D.C.Cir.1996). In Sammoury , the court concluded that it did have jurisdiction to review a challenge to the factual findings underlying a sentencing decision. There, the defendant had pled guilty to bank fraud based on her misappropriation of funds that were donated to her nonprofit employer. Id. at 1341 . The district court denied her motion seeking a downward departure based on coercion, duress, and diminished capacity due to abuse by her husband. Id. On appeal, Sammoury asserted that the sentencing judge misapprehended the evidence offered in support of the departure motion and erroneously con- *252 eluded that the abuse was not the cause of Sammoury’s crime. Id. at 1343, 1346 . After a lengthy discussion regarding appellate jurisdiction over such a claim, the D.C. Circuit determined that it was empowered to review the sentence. Id. at 1345 .

The Sammoury court based its conclusion that it had jurisdiction to review factual findings underlying a denial of departure for clear error on the language of 18 U.S.C. §§ 3742 (a)(2) and 3742(e). The court agreed that it would lack jurisdiction in a case where the district court “correctly understood the Sentencing Guidelines and the evidence, knew [it] could depart, and yet decided to stick to the Guideline range.” Id. at 1343 . However, the court also observed that, where “a district judge sticks to the Guideline range because he mistakenly believes he lacks authority to do otherwise, his sentencing decision is reviewable on appeal.” Id. at 1344 . Because such a situation exists where “clearly erroneous factual mistakes [are] used in determining whether to depart,” the court concluded that § 3742(a)(2) provides a court of appeals with the power to review challenges to the sentencing court’s factual findings. Id. at 1345. The court based this conclusion on its interpretation of § 3742, as well as its view that “[i]t is no more an infringement on the discretion of trial judges to set aside a sentence when the refusal to depart rests on a clearly erroneous factual mistake than to set aside a sentence when the refusal stems from a misinterpretation of the Guidelines.” Id. Upon reaching this conclusion, the court went on to review the merits of Sam-moury’s claim, and it ultimately determined that the district court’s findings were not clearly erroneous. Id. at 1346.

Given my reading of our precedents described above, I believe that the D.C. Circuit’s opinion in Sammoury is quite consistent with our jurisprudence and supports our review power here. However, a review of the case law of the other courts of appeals reveals that there is probably a circuit split on the precise issue before us here. 13 The Courts of Appeals for the First and Fourth Circuits would apparently dismiss this case based on a lack of appellate jurisdiction. See United States v. Underwood, 970 F.2d 1336 (4th Cir. 1992); United States v. Pierro, 32 F.3d 611 (1st Cir.1994). 14 On the other hand, the Courts of Appeals for the D.C., Second, Fifth, and Ninth Circuits have reviewed for clear error under similar circumstances. See Sammoury, 74 F.3d at 1343-45 (providing an extensive discussion of the statutory basis for reviewing findings of fact underlying a denial of departure for clear error); United States v. Ardoin, 19 F.3d 177, 181 (5th Cir.1994) (“We review the findings of fact under the ‘clearly erro *253 neous’ standard, but legal application of the Guidelines is reviewed de novo.”); United States v. Mickens, 977 F.2d 69, 72 (2d Cir.1992) (reviewing the district court’s factual findings for clear error where the appeal challenged the denial of a downward departure sought based on various mitigating circumstances); United States v. Roe, 976 F.2d 1216, 1217 (9th Cir.1992) (“We review for clear error the [district] court’s finding that a particular circumstance was not extraordinary”).

I submit that our court is most properly aligned with the latter four circuits, in part because I find the reasoning of those courts — and particularly that of the District of Columbia Circuit in Sammoury— to be more persuasive, but also because I believe that our decision in McQuilkin has already placed us on that side of the issue. I further submit that the majority view parts company with McQuilkin and, as a result, runs afoul of our court’s Internal Operating Procedures, § 9.1.

IV.

In light of the foregoing discussion, I cannot agree that we lack jurisdiction to consider Minutoli’s appeal. Where it is based on a plainly mistaken determination of the facts, a district court’s decision that a downward departure is not warranted or authorized under the Guidelines cannot be insulated from review. As I read the relevant authority, there is neither a statutory nor a binding precedential mandate that we lack jurisdiction in such a 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 discretionary call was actually made unless it is clear from the record that the sentencing decision did not result from that determination. And where, as here, the district court’s determination that it lacks authority is based upon a clearly erroneous factual finding, we have jurisdiction to review and correct that error pursuant to both the relevant statute and our own case law. The majority concludes otherwise and refuses to address the clear error in the factual findings underlying the District Court’s sentencing decision here. Therefore, I must respectfully dissent, and I strongly suggest that, in order for the majority’s view to stand, this case must be addressed by the court en banc.

. At least some of the discord between the majority's position and my own seems to arise from our differing views regarding what it means to "apply” the Guidelines. The majority is correct that, in some sense, the District Court here "applied” the Guidelines correctly, insofar as it correctly identified the rele-' vant departure provisions, and properly understood the factors that a defendant must prove before a district court is free to consider granting a departure under that provision. However, beyond identifying the correct legal standards, I believe that the proper "application” of the Guidelines must also include an accurate understanding of the facts that are pertinent to the analysis in which the court must engage when considering the relevant provision. In 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 applicability or "fit” of those provisions in light of the correctly-determined facts of the case. In other words, the court must find the facts correctly, then correctly apply the appropriate Guideline to those facts.

. By "purely discretionary refusal to depart” I mean a case in which the district court finds that the facts do satisfy the relevant Guideline provision, such that the court has the authority to depart in the particular case before it, but where the court exercises its discretion in deciding not to grant the departure for some other reason. An example of this, based on a variation of the facts of this case, would be a case in which the defendant presents significant evidence of threats or physical violence, leading the district court to conclude that the defendant qualifies for a departure under § 5K2.12. In such a case, the court would recognize its specific authority to depart for that particular defendant, but could discre-tionarity refuse to do so simply because the defendant seems like a "bad” person, or for any number of other reasons.

. Based on the portions of the District Court's comments at the sentencing hearing that are quoted in the Denardi majority opinion, I am inclined to agree with Judge Becker, who, dissenting from the court's decision, indicated his belief that the majority decided a question that was not actually presented by that case. See 892 F.2d at 272 (Becker, J., dissenting) (stating that the record shows that the district court "felt legally prohibited from departing,” while the majority decided "whether a discretionary refusal to depart is appealable”). However, I will assume here that the majority’s interpretation was correct, and that the holding in Denardi that we lacked jurisdiction is limited to situations in which a district court in fact possesses and recognizes its legal authority to depart on the facts before it, but exercises its discretion in refusing to do so.

. For example, see United States v. Gori, 324 F.3d 234, 239 (3d Cir.2003) (finding jurisdiction to review the denial of a departure request based on the low quality of the drug involved); United States v. Dominguez, 296 F.3d 192, 194-95 (3d Cir.2002) (finding jurisdiction to review the denial of a departure request based on family circumstances); United States v. Castano-Vasquez, 266 F.3d 228, 231 (3d Cir.2001) (finding jurisdiction to review the denial of a departure request based on aberrant behavior); United States v. McQuilkin, 97 F.3d 723, 730 (3d Cir.1996) (finding jurisdiction to review the denial of a departure request based on physical impairment); United States v. Mummert, 34 F.3d 201, 205 (3d Cir.1994) (remanding for clarification of the reasoning underlying the denial of a departure); United States v. Love, 985 F.2d 732 , 734 n. 3 (3d Cir.1993) (finding jurisdiction to review the denial of a departure request based on assistance to state and local authorities); United States v. Georgiadis, 933 F.2d 1219, 1224 (3d Cir.1991) (finding no jurisdiction to review the denial of a departure where the record did not show that the court failed to consider the request or misunderstood its authority); United States v. Bierley, 922 F.2d 1061, 1066-67 (3d Cir.1990) (finding jurisdiction to review the denial of a departure request based on the defendant's role in the offense).

. I respectfully disagree with the majority’s explanation as to why many appeals raising issues related to our jurisdiction to review denials of downward departures result in opinions that are not precedential. The majority asserts that this is due to the fact that "our law in this area is settled.” Maj. Op. at 240 n. 4. However, a perusal of just a few of the host of not precedential opinions on this subject reveals a trend of confusion and inconsistency. Compare, e.g., United States v. Jackman, 72 Fed.Appx. 862 , 2003 WL 21754978 (3d Cir. July 30, 2003) (not prece-dential) (reviewing for clear error a district court's determination that the defendant’s mental problems were not sufficiently atypical to warrant a departure), with United States v. Love, 69 Fed.Appx. 81 , 2003 WL 21363404 (3d Cir. June 13, 2003) (not precedential) (finding no jurisdiction to review a district court's determination that the conditions of the defendant's pre-trial confinement were "not so harsh or inappropriate as to warrant a downward departure”).

. The Government urged at oral argument, and again by way of a supplemental letter brief filed after the argument, that our precedents preclude us from exercising jurisdiction in every case where a district court uses this type of standard language to reference its ‘'discretion” under the Guidelines. This position is simply incorrect.

. I say "probably" because there is a lack of consistency in the reasoning of some courts, as noted infra in note 8. Additionally, some courts, including our own in McQuilkin , have apparently adopted a view with minimal discussion of the issue.

. While Minutoli indicates that the Courts of Appeals for the Seventh and Eleventh Circuits would also find that they lack jurisdiction in a case like this one, I do not find that to be certain. The Court of Appeals for the First Circuit also notes cases from those courts of appeals in support of its position in Dewire. 271 F.3d at 338 n. 5 (citing United States v. Steels, 38 F.3d 350 (7th Cir.1994), and United States v. Patterson, 15 F.3d 169 (11th Cir.1994)). However, those cases did not involve allegations of clearly erroneous factual findings; rather, the defendants in Steels and Patterson apparently challenged the district courts' understanding of the relevant laws and Guideline provisions. It thus remains unclear how those courts would decide the jurisdictional question presented in this case, as they have not yet been squarely presented with it. Indeed, even the Dewire court noted conflicting authority from the Seventh Circuit on this question. 271 F.3d at 338 n. 5.