UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellant,
v. No. 02-3405
MERRILL W. ANDREWS, also
known as Kamanda Kamangeni,
Defendant - Appellee.
ORDER
Filed December 5, 2003
Before TACHA, Chief Circuit Judge, PORFILIO, and BALDOCK, Circuit
Judges.
The order and judgment dated September 22, 2003, shall be published. A
copy of the published opinion is attached.
Entered for the Court
Patrick Fisher, Clerk of Court
By:
Amy Frazier
Deputy Clerk
F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
SEP 22 2003
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v. No. 02-3405
MERRILL W. ANDREWS, also
known as Kamanda Kamangeni,
Defendant-Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
(D.C. No. 02-CR-10073-01-JTM)
Submitted on the briefs:
Eric F. Melgren, United States Attorney, Brent I. Anderson, Assistant United
States Attorney, Wichita, Kansas, for Plaintiff-Appellant.
David J. Phillips, Federal Public Defender, Timothy J. Henry, Assistant Federal
Public Defender, District of Kansas, Wichita, Kansas, for Defendant-Appellee.
Before TACHA, Chief Judge, PORFILIO, and BALDOCK, Circuit Judges.
BALDOCK , Circuit Judge.
Defendant Merrill Andrews, a/k/a Kamanda Kamangeni, pled guilty to a
one-count superceding indictment charging him with robbing a federally insured
credit union in Wichita, Kansas, in violation of 18 U.S.C. § 2113(a). Under the
applicable sentencing guidelines, defendant had an adjusted offense level of 29
and a criminal history category of VI, which produced a sentencing range of
151-188 months’ incarceration. The district court departed downward to 120
months based on “exceptional community support, as well as aberrant behavior.”
Aplt’s App., Vol. I at 21. The government now appeals. See 18 U.S.C.
§ 3742(b). The government contends that defendant did not meet the guideline
requirements for a departure based on aberrant behavior and that the evidence of
community support did not establish this to be an exceptional case deserving of
departure. We reverse and remand for resentencing. 1
The standards we apply in reviewing the district court’s departure decision
have changed of late. Following the Supreme Court’s landmark decision in Koon
v. United States, 518 U.S. 81 (1996), we applied a unitary abuse of discretion
standard in reviewing departures. See, e.g., United States v. Collins, 122 F.3d
1297, 1303 (10th Cir. 1997). That discretionary review standard changed,
1
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
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however, with the enactment of the Prosecutorial Remedies and Tools Against the
Exploitation of Children Today Act of 2003 (PROTECT Act), Pub. L. No. 108-21,
117 Stat. 650, which became effective on April 30, 2003. Because this case was
pending before us on the effective date of the PROTECT Act, we will apply the
Act’s new appellate standards on our review. 2
Section 401 of the PROTECT Act amended 18 U.S.C. § 3742(e) to provide
that when a district court departs from the guidelines, the appellate court must
review de novo whether the departure is based on a factor that: “(i) does not
advance the objectives set forth in section 3553(a)(2); or (ii) is not authorized
under section 3553(b); or (iii) is not justified by the facts of this case.” 18 U.S.C.
§ 3742(e)(3)(B). The appellate court also must review de novo whether the
district court provided a sufficient written statement of reasons as required by
amended section 3553(c). Id. § 3742(e)(3)(A).
We recently set forth the analytical framework we will now follow in
reviewing departures in United States v. Jones, 332 F.3d 1294 (10th Cir. 2003).
In light of the PROTECT Act’s amendments, our review of the
district court’s sentencing departure shall proceed as follows. First,
we must ascertain whether the district court set forth, in a written
order of judgment, its specific reasons for departure. Second, we
2
Other circuits have also applied the PROTECT Act’s new appellate
standards to cases pending on April 30, 2003. See, e.g., United States v.
Thurston , 338 F.3d 50, 71-72 (1st Cir. 2003); United States v. Hutman , 339 F.3d
773, 775 (8th Cir. 2003).
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must consider whether the factors the district court relied upon
advance the objectives set forth in section 3553(a)(2) and ensure that
the district court’s reliance on those factors did not violate any
specific prohibition in the Guidelines. Our review under this second
prong of the analysis is de novo. Third, we must consider whether
the factors the district court relied upon were authorized under
section 3553(b) and justified by the facts of the case. To determine
whether the factors are authorized, we look to 18 U.S.C.
§ 3553(b)(1), which provides that a district court may depart if there
exists an aggravating or mitigating circumstance of a kind, or to a
degree, not adequately taken into consideration by the Sentencing
Commission in formulating the guidelines. This third step in the
analysis is commonly called the “heartland” determination. We
review de novo this application of the guidelines to the facts . . . .
Finally, we must ask whether the district court’s sentence departs to
an unreasonable degree from the applicable guidelines range. In
reviewing the degree of departure, we give due deference to the
district court and will not reverse absent an abuse of discretion.
Id. at 1299-3000 (quotations, citations, and footnotes omitted).
One of the new requirements of the PROTECT Act amendments is that the
district court state its reasons for imposing a particular sentence “with specificity
in a written order of judgment and commitment.” 18 U.S.C. § 3553(c). The
district court here, having no warning of the future requirements when it entered
its judgment in October 2002, provided only the following written statement of
reasons for the sentence: “The Court departed down to a sentence of 120 months
due to exceptional community support, as well as aberrant behavior.” Aplt’s
App., Vol. I at 21. Whether this statement meets the specificity requirement of
§ 3553(c) is a matter we need not decide in this instance, because we conclude
defendant must be resentenced in any event.
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We next consider whether the district court relied on any impermissible
factors in concluding that defendant’s case fell outside the heartland of bank
robbery cases. The district court relied on two factors for departure: community
support and aberrant behavior. Community support is akin to community ties,
which the guidelines treat as a specific offender characteristic that is “not
ordinarily relevant in determining whether a sentence should be outside the
applicable guideline range.” U.S. Sentencing Guidelines Manual § 5H1.6 (Nov.
1, 2000) (“U.S.S.G.”). As a discouraged factor, community support can be relied
on for a downward departure if the district court finds it “is present to an unusual
degree and distinguishes the case from the ‘heartland’ cases covered by the
guidelines.” Id. § 5K2.0. Therefore, so long as the facts justify distinguishing
this case from the heartland, community support may be a permissible basis for
departure.
Aberrant behavior also may support a downward departure “in an
extraordinary case,” but the guidelines prohibit a district court from relying on
aberrant behavior for departure if “the defendant has more than one criminal
history point, as determined under Chapter Four . . .; or . . . the defendant has a
prior federal, or state, felony conviction, regardless of whether the conviction is
countable under Chapter Four.” Id. § 5K2.20. Here, it is undisputed that
defendant had eleven criminal history points and more than one state felony
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conviction. Accordingly, the district court erred in relying on aberrant behavior
as a factor for departure.
We are left, then, with determining whether the district court correctly
determined that the evidence of community support for defendant was sufficient
to remove this case from the heartland and warrant a departure. When used as the
sole basis for departure, a defendant’s support in the community must be
“extraordinary.” United States v. Jones, 158 F.3d 492, 501 (10th Cir. 1998)
(“David Jones”). Based on our review, we conclude the evidence here does not
meet this standard. 3
The evidence before the district court showed that defendant was born in
December 1955 and began committing crimes in his youth. When he was released
on parole in June 1999 at the age of forty-three, he had been incarcerated
continuously for the previous twenty-one years of his life. While on parole,
defendant struggled to find a job, but was finally able to find some part-time jobs.
He undertook the care of his handicapped nephew and volunteered with the Boys
& Girls Club and with his church. Defendant had been on parole for
approximately three years when he robbed a credit union on May 16, 2002.
3
Although we now apply a de novo standard of review under the PROTECT
Act, we would reach the same conclusion under the former unitary abuse of
discretion standard.
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That morning, having recently lost his job, defendant entered the credit
union in a mask and brandishing a handgun. He climbed over the teller counter
and demanded that the teller put money in the bag he carried. Defendant escaped
with the money, but was spotted by a witness who followed him and called the
police. When the police joined the pursuit, defendant led them on a high-speed
chase that ended when defendant, driving the wrong way down a one-way street,
crashed into a large commercial truck. Police apprehended defendant in his car
with the money and other paraphernalia from the robbery. Defendant
subsequently pled guilty to the charge of bank robbery.
Before sentencing, the district court received letters from several members
of the community, including pastors at defendant’s church and the Boys & Girls
Clubs of South Central Kansas. The letter from the Boys & Girls Clubs, which
had been written in April 2002 before the bank robbery, described defendant’s
volunteer work with the organization since his release in June 1999. It discussed
the counseling program he participated in that was aimed at directing male youths
away from crime.
At the sentencing hearing, the court also heard comments on defendant’s
behalf from his mother, his girlfriend, his church sponsor, and two of the pastors
who had written letters. These witnesses all related their shock and sadness at
defendant’s actions and their feelings that they had, in some way, let defendant
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down by not recognizing the stress he was under and his need for help. The
witnesses described the caring person they knew defendant to be and their belief
that further incarceration would not serve either defendant or the community well.
After considering all the information presented, the district court concluded
that a departure was warranted for the following reason: “[T]his is not based on
the number of letters or the number of people who are here today, but the passion
of the people who still believe in him is significant, and it tells me something
about the kind of community support that he has. . . . I do recognize what I would
consider to be exceptional community support and passion that the community
seems to be supporting [defendant.]” Aplt’s App., Vol. II at 63.
We conclude that the facts presented to the court did not support a
departure, especially when compared with the facts in other cases. In David
Jones, for instance, the district court had before it twelve letters from community
leaders and the victim’s close relatives that extolled the defendant’s good works
and opposed his incarceration, which the court found to be “‘very unusual.’” 158
F.3d at 500-501. The district court cited both the defendant’s “long history of
community service, and his strong support in the community, even among the
family of the victim,” as two among eleven factors for departure. Id. at 500.
Under the old standard of review, we held that the district court did not abuse its
discretion in relying on either of these factors as “one of several grounds
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supporting a departure,” id., having previously noted that “[a] factor can be
considered in the aggregate if it is ‘atypical,’ even though it may not be sufficient,
in and of itself, to support a departure,” id. at 499. When we examined each of
the grounds as the sole basis for departure, however, we expressed our reluctance
to sustain a departure based solely on the defendant’s good works under U.S.S.G.
§ 5H1.6, and we held that the defendant’s “support in the community [was]
insufficiently ‘extraordinary’ to support a departure on this basis alone” under
U.S.S.G. § 5H1.6. David Jones, 158 F.3d at 501.
Here, despite the witnesses’ genuine distress that they had not foreseen the
events that transpired and their continued belief that defendant was a
fundamentally good person who had simply snapped under the strain of his
current circumstances and made a poor choice for which he was deeply
remorseful, their support for defendant simply cannot be described as
extraordinary so as to distinguish this case from the heartland. Because the facts
did not justify a departure on the basis of community support, the district court
erred in departing downward from the guidelines when sentencing defendant.
We REVERSE defendant’s sentence and REMAND to the district court
with instructions to impose a sentence within the guideline range. Defendant’s
motion to supplement the record on appeal is GRANTED.
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