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 Title United States v. Tucker

 Argued September 28, 2004         Decided October 26, 2004

 Subject Crime; Legal Analysis

                                                                                                                                                                                                                

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      United States Court of Appeals

                 FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 28, 2004                   Decided October 26, 2004

                              No. 03-3139

                     UNITED  STATES OF AMERICA,

                               APPELLANT

                                      v.

                           DARIN  M. TUCKER,

                                APPELLEE

         Appeal from the United States District Court

                    for the District of Columbia

                          (No. 02cr00311­01)

  Lisa H. Schertler, Assistant U.S. Attorney, argued the

cause for appellant.  With her on the briefs were Roscoe C.

Howard, Jr., U.S. Attorney at the time the brief was filed,

Kenneth L. Wainstein, U.S. Attorney, and John R. Fisher

and Florence Y. Pan, Assistant U.S. Attorneys.  Thomas J.

Tourish, Jr., Assistant U.S. Attorney, entered an appearance.

 Bills of costs must be filed within 14 days after entry of judgment.

The court looks with disfavor upon motions to file bills of costs out

of time.

 

                                 2

  Lisa B. Wright, Assistant Federal Public Defender, argued

the cause for appellee.       With her on the brief was A. J.

Kramer, Federal Public Defender.           Neil H. Jaffee and

Shawn Moore, Assistant Federal Public Defenders, entered

appearances.

  Before:  GINSBURG, Chief Judge, and EDWARDS and ROBERTS,

Circuit Judges.

  Opinion for the Court filed by Circuit Judge ROBERTS.

  ROBERTS,  Circuit Judge: The district judge in this case

declined to sentence the defendant according to the Sentenc-

ing Guidelines because he disagreed with the Guidelines.  As

the judge put it, he was ``not going to be the instrument of

injustice in this case.''   Presentence Hearing Tr. at 4 (July 18,

2003).   The Supreme Court has explained that `` ` s imple

justice' is achieved when a complex body of law developed

over a period of years is evenhandedly applied.''  Federated

Dept. Stores, Inc. v. Moitie, 452 U.S. 394, 401 (1981).  The

district judge's apparent election to sentence according to his

own lights, rather than pursuant to the Sentencing Guidelines

binding on him and on us, compels us to vacate and remand

so that we may be certain Tucker is sentenced under the

Guidelines and in accordance with the rule of law we are all

duty-bound to uphold.

                                 I.

  On June 20, 2002, a police officer on a routine patrol

approached Darin M. Tucker and asked him ``What's up?''  In

response, Tucker charged the officer, causing him to fall

backward.     The officer pursued Tucker across the street,

caught him, and placed him under arrest for assaulting a

police officer.   In the search incident to arrest, the officer

discovered two clear plastic bags containing 45.3 grams of

crack cocaine.  On March 20, 2003, pursuant to an agreement

with the government, Tucker pled guilty to possession with

intent to distribute five grams or more of cocaine base in

violation of 21 U.S.C. §§  841(a)(1) and (b)(1)(B)(iii).

 

                                3

  The pre-departure sentencing range for Tucker under the

United States Sentencing Guidelines is not in dispute.  Given

the level of the offense, Tucker's criminal history category,

and a three-offense-level reduction for acceptance of responsi-

bility, the appropriate pre-departure sentencing range was

70­87 months' imprisonment.  United States Br. at 9 (citing

Presentence Investigation Report at 15).       The government

also indicated that it would not oppose the application of the

so-called ``safety valve'' provisions of the Sentencing Guide-

lines.   See Presentence Hearing Tr. at 4.        See generally

U.S.S.G. § 2D1.1(b)(6) and § 5C1.2 (allowing reduction in

offense level below the mandatory minimum sentence for

offenders of 21 U.S.C. § 841 in the absence of certain aggra-

vating characteristics).  With application of the safety valve,

Tucker was eligible for an additional two-point reduction in

offense level, lowering the Guidelines range to 57­71 months'

imprisonment.  See Sentencing Hearing Tr. at 11 (Sept. 30,

2003);  Tucker Br. at 3­4.

  For the thirteen months prior to his sentencing, Tucker

was released under the supervision of a pretrial monitoring

program, which required that he undergo regular drug test-

ing, abide by strict curfew provisions, and maintain contact

with the supervising agency.  During that time, he violated

curfew eleven times and failed two drug tests.  See Sentenc-

ing Report at 1­3 (Sept. 25, 2003).      Tucker also, however,

secured a full-time job at a warehouse -- a job that allowed

him to contribute to the support of his children.  His employ-

er took the time to write an ``extraordinarily complimentary

letter'' praising Tucker as an employee and expressing his

wish that Tucker remain able to work for him.  Presentence

Hearing Tr. at 2­3.  Tucker also began attending computer

repair courses in the hope of starting his own business.  This

record was sufficient for the pretrial services officer to recom-

mend that Tucker be transferred from intensive supervision

to work release pending his sentencing.  Sentencing Report

at 3.

  At the July 18, 2003 presentence hearing, the district court

acknowledged the drug testing failures and curfew violations,

but noted Tucker's progress and observed that he had ``com-

 

                                   4

ported himself as a model citizen since his arrest.''  Presen-

tence Hearing Tr. at 2.        The sentencing judge expressed

frustration that the Sentencing Guidelines left him ``no choice

but to send Tucker  to prison for nearly five years,'' an

outcome that he viewed as ``counterproductive'' for Tucker's

rehabilitation, the community, and the criminal justice sys-

tem.  Id. at 3.  Accordingly, the judge let the parties know

that if Tucker were to maintain a clean record until his

sentencing the following month, it was his ``intention to grant

a downward departure in his offense level sufficient TTT to

place him on probation.''  Id.  He advised the prosecutor ``I

think you better start preparing your appeal,'' for even

though he was ``fully cognizant of what the Court of Appeals

in its wisdom may do'' he was ``not going to be the instrument

of the injustice in this case.''   Id. at 4.

  True to his word, on September 30, 2003, after acknowl-

edging again that the ``absolute minimum'' sentence he could

issue Tucker under the Guidelines was 57 months' imprison-

ment,  see Sentencing Hearing Tr. at 3, the judge departed

downward to sentence Tucker to five years' probation and a

$100 special assessment fine.          Although judges departing

from the range prescribed by the Guidelines are required to

explain their reasons for doing so ``with specificity in the

written order of judgment and commitment,'' 18 U.S.C.

§ 3553(c), the sentencing order simply referred to ``U.S.S.G.

§ 5K2 and reasons set forth on the record at sentencing.''

Judgment and Commitment Order at 6.

  Section 5K2 covers a wide range of grounds for departure,

so we cannot say with certainty what the judge intended by

referencing this broad section of the Guidelines.  The tran-

script of the hearing, while not providing an explicit delinea-

tion of reasons for the downward departure, suggests five

possible ones:  (1) the fact that Tucker had not committed a

criminal offense in the prior nine years;  (2) the court's belief

that the sentence required by the Guidelines was unjust;  (3)

Tucker's post-conviction rehabilitation;  (4) Tucker's employ-

ment record;  and (5) Tucker's family ties and responsibilities.

  The government appeals the downward departure.

 

                               5

                              II.

   Our review of district court sentencing decisions is gov-

erned by 18 U.S.C. §  3742(e).   We ``accept the findings of fact

of the district court unless they are clearly erroneous,'' id.,

and review de novo pure questions of law -- such as whether

a factor is a permissible basis for departure under any

circumstances.  See Koon v. United States, 518 U.S. 81, 100

(1996).  Until recently, we would review a district court's

decision to depart under the Guidelines only for abuse of

discretion.  In 2003, however, Congress amended § 3742(e)

by enacting § 401 of the Prosecutorial Remedies and Other

Tools to end the Exploitation of Children Today Act of 2003

(PROTECT Act), Pub. L. No. 108-21, 117 Stat. 650, 667­76

(Apr. 30, 2003).  Pursuant to the PROTECT Act amendment,

we review the district court's decision to depart from an

applicable Guidelines range de novo.       18 U.S.C. § 3742(e);

United States v. Riley, 376 F.3d 1160, 1164 (D.C. Cir. 2004).

Although the conduct for which Tucker was convicted took

place some ten months before the PROTECT Act became

law, we apply this judicial review provision ``with immediate

effect, and without constitutional disability, to appellate pro-

ceedings after April 30, 2003.''     Riley, 376 F.3d at 1165.

                              III.

   To the extent the district court based the departure on its

belief that the sentence was unjust, it relied on a factor that is

clearly impermissible under the Guidelines.          See United

States v. Webb, 134 F.3d 403, 407 (D.C. Cir. 1998) (``The

district court's disagreement with the policies embedded in

the Sentencing Guidelines does not authorize it to depart.'').

   The same holds for the remoteness of Tucker's criminal

history.  It is true that Tucker had not been convicted of a

criminal offense in nine years.  Nevertheless, because Tucker

was assigned to Criminal History Category I -- the lowest

possible level -- the Guidelines have already accounted for

that mitigating fact.  See U.S.S.G. § 4A1.3 (policy statement)

(``a departure below the lower limit of the guideline range for

Criminal History Category I on the basis of adequacy of

 

                                6

criminal history cannot be appropriate'').    The departure is

thus invalid to the extent the district court based it on this

factor.  See In re Sealed Case, 292 F.3d 913, 916­17 (D.C.

Cir. 2002).

  The remaining factors the district court seemed to consider

in electing to depart are legally permissible -- in rare circum-

stances.   The Sentencing Guidelines include post-conviction

rehabilitation as a factor qualifying a defendant for a down-

ward departure for acceptance of responsibility.   See U.S.S.G.

§ 3E1.1, cmt. n.1(g) (considerations for an acceptance-of-

responsibility departure include ``post-offense rehabilitation

efforts (e.g., counseling or drug treatment)'' ).    Tucker re-

ceived the maximum decrease in offense level authorized by

§ 3E1.1.  Although in most cases this reduction would be the

maximum allowable, this circuit has left open the possibility

for a further reduction on the ``rare occasion'' that the reha-

bilitation ``is so extraordinary as to suggest its presence to a

degree not adequately taken into consideration'' by § 3E1.1.

United States v. Harrington, 947 F.2d 956, 962 (D.C. Cir.

1991) (quoting United States v. Sklar, 920 F.2d 107, 116 (1st

Cir. 1990)) (internal quotation marks omitted).

  Similarly, departures based on employment history or fami-

ly responsibilities are rare, but permitted.  Both are discour-

aged factors for downward departures.  See U.S.S.G. § 5H1.5

(policy statement) (``Employment record is not ordinarily

relevant in determining whether a sentence should be outside

the applicable guideline range.''); id. § 5H1.6 (policy state-

ment) (same, with respect to family ties and responsibilities).

As discouraged factors, neither may be a basis for a depar-

ture unless it is present ``to an exceptional degree.''  Koon,

518 U.S. at 95­96.       Accord Riley, 376 F.3d at 1170­71.

  These are the legal standards for the permitted factors at

issue, but we are unable to discern whether and how the

district court applied this body of law to the case at hand.

This is in large part because the district court neglected to

give reasons for its departure ``with specificity in the written

order of judgment and commitment'' as required by 18 U.S.C.

§ 3553(c).  Although the district court noted in its sentencing

 

                                7

order that its departure was granted pursuant to ``U.S.S.G.

§  5K2 and reasons set forth on the record at sentencing,'' this

explanation is insufficient.  Prior to the PROTECT Act, the

sentencing judge only had to state reasons for departure in

open court.  See 18 U.S.C. § 3553(c) (2000).  The Act, howev-

er, amended § 3553(c) to add the requirement that the court

explain reasons for departing in writing.  See PROTECT Act,

§ 401(c), 117 Stat. at 669­70.  Allowing the district court to

satisfy this new requirement merely by referring to the

sentencing hearing would render the 2003 amendment super-

fluous, and the district court's additional, vague reference to

§  5K2 adds nothing.

   Given this failure to comply with § 3553(c), the district

court was silent on whether any or all three of the permitted

factors were present to exceptional degrees in Tucker's case,

and it has given just as little indication as to how it defines

the respective ``heartlands'' against which an exceptional case

is measured.     See U.S.S.G. ch. 1, pt. A, cmt. 4(b) (The

heartland is ``a set of typical cases embodying the conduct

that each guideline describes.  When a court finds an atypical

case, one to which a particular guideline linguistically applies

but where conduct significantly differs from the norm, the

court may consider whether a departure is warranted.'').

Thus, even though we are permitted to review the district

court's decision to depart de novo, we have been presented

with a record insufficient for that task.

                               IV.

   The government has requested that we vacate Tucker's

sentence and remand the case to the district court with

instructions to impose a sentence within the applicable Guide-

lines range.   United States Br. at 43.   It is true that after the

PROTECT Act, the expanded scope of appellate review al-

lows us to determine on the basis of the record whether a

decision to depart from the Guidelines range is justified.

Indeed, when we have been confident that the district court

developed the record sufficiently and attempted to follow the

Guidelines,  see Riley, 376 F.3d at 1172­73, or attempted to

 

                                8

explain its departure at least in part in terms of the Guide-

lines,  see Webb, 134 F.3d at 406, we have done just that.

  That is not the case here.      Although Tucker has gamely

attempted to rationalize the district court decision in terms of

the Guidelines, the district court was not attempting to apply

the Guidelines in this case; it instead seemed intent on

defying them -- and 18 U.S.C. § 3553(c), to boot.  De novo

review is still review, and implies there has been some good

faith effort by the district court to apply the Guidelines in the

first place.  That has not yet happened here.  We decline to

instruct the district court at this time whether a departure

based on permitted factors is appropriate in Tucker's case.

Instead, we vacate Tucker's sentence and remand for resen-

tencing consistent with 18 U.S.C. § 3553(c) and the Sentenc-

ing Guidelines.   So long as these Guidelines are the law of the

land, we -- and the district courts -- are obligated to apply

them.

 

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