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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 14, 2003 Decided May 2, 2003
No. 01-3134
UNITED STATES OF AMERICA,
APPELLEE
v.
WILLIAM JOAQUIN,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 01cr00216–01)
Lisa B. Wright, Assistant Federal Public Defender, argued
the cause for appellant. With her on the briefs was A. J.
Kramer, Federal Public Defender. Neil H. Jaffee, Assistant
Federal Public Defender, entered an appearance.
Chrisellen R. Kolb, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Roscoe C.
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
Howard, Jr., U.S. Attorney, John R. Fisher and Roy W.
McLeese III, Assistant U.S. Attorneys.
Before: SENTELLE, HENDERSON and TATEL, Circuit Judges.
Opinion for the Court filed by Circuit Judge TATEL.
Opinion concurring in part and dissenting in part filed by
Circuit Judge HENDERSON.
TATEL, Circuit Judge: Challenging his sentence for distrib-
uting crack cocaine, appellant argues, among other things,
that the district court misconstrued the scope of its authority
in denying his motion for a downward departure under U.S.
Sentencing Guidelines section 4A1.3. Although we disagree,
we vacate the sentence and remand because, contrary to
section 4A1.3’s plain language, the district court based its
decision in part on appellant’s ‘‘prior arrest record itself.’’
I.
Appellant William Joaquin pleaded guilty to distributing
approximately 250 grams of cocaine base to an undercover
District of Columbia police officer. In return, the govern-
ment promised not to file an information under 21 U.S.C.
§ 841(b)(1) that would have triggered a twenty-year mandato-
ry minimum sentence because Joaquin had previously been
convicted of a felony drug offense. 21 U.S.C. § 841(a)(1),
(b)(1)(A)(iii). Based on an offense level of 31 and a criminal
history category of IV, the presentence report calculated
Joaquin’s sentencing range as 151 to 188 months. The report
assigned two criminal history points for a February 1991
sentence for attempted drug possession; two points for a
1993 sentence for possession of cocaine; three points for a
1993 felony sentence for distributing cocaine; and two points
because Joaquin engaged in the 2001 sales while still on
parole for the earlier felony. U.S. Sentencing Guidelines
Manual § 4A1.1(a), (b), (d). Three marijuana and PCP
distribution offenses committed while Joaquin was a juvenile
were not counted.
3
Joaquin did not challenge the presentence report’s calcula-
tion, but asked the district court to depart downward under
U.S. Sentencing Guidelines section 4A1.3 because his prior
crimes (1) involved drug offenses to support a cocaine addic-
tion for which he never received treatment and (2) were
committed without weapons or violence while under the age
of twenty-one. Under section 4A1.3, district judges have
discretion to depart from otherwise applicable sentencing
ranges ‘‘[i]f reliable information indicates that the criminal
history category [as calculated under other provisions of the
Guidelines] does not adequately reflect the seriousness of the
defendant’s past criminal conduct or the likelihood that the
defendant will commit other crimes.’’ Id. § 4A1.3. Insisting
that his criminal history was significantly less serious than
those of most defendants in Category IV, Joaquin argued that
he should be treated as falling in Category III with a
sentencing range of 135 to 168 months. Opposing the motion,
the government argued that Joaquin’s seven convictions and
eighteen arrests in fourteen years demonstrated a significant
risk of recidivism.
The district court began its discussion by stating, ‘‘I think
this is a close case, everybody. [Defense counsel] Grimm, I
hope you take an appeal so we can get some law, but I will
have to say that I honestly don’t think that this case falls
within the case law interpretation of the Guidelines and what
would constitute a real over-representation of one’s criminal
history.’’ Sentencing Tr. at 25. The court added, ‘‘I would
be delighted to get reversed[,]TTTT [b]ut I honestly don’t
think that this is an over-representation of his criminal histo-
ry.’’ Id. at 26. Responding to defense counsel’s argument
that the court should disregard the eleven arrests that had
not led to convictions because they were ‘‘no papered’’ and
therefore might have involved situations in which the govern-
ment arrested the wrong person or had too little information
to bring a case, the court stated, ‘‘those arrests can mean
many different things[,]TTTT [but] [t]his number of arrests
TTT for a young man of 29, is still an extraordinary number of
arrests. When I look at what you have posed as the key
issue, whether there is a chance of recidivism, I TTT think this
4
record shows TTT that there is a great chance of recidivism.’’
Id. at 27. The court concluded: ‘‘I feel compelled to deny the
motion. Not because I don’t have any legal authority to
grant it, but because I just conclude that this is not a case
that falls within the departure downward case law on this
issue.’’ Id. at 28.
Joaquin appeals, arguing that the district court mistakenly
believed that it lacked authority to depart based on the facts
of the case and that it violated a provision in section 4A1.3
stating that ‘‘a prior arrest record itself shall not be consid-
ered under section 4A1.3.’’ U.S. Sentencing Guidelines Man-
ual § 4A1.3. Joaquin also argues that the district court did
not realize that one of the convictions used to calculate his
criminal history category should have been disregarded under
section 4A1.1 because it was imposed more than ten years
prior to the instant offense. Id. § 4A1.1, cmt. n.2.
II.
We will review a district court’s refusal to depart from the
applicable Guideline range where the sentence is ‘‘imposed in
violation of law’’ or ‘‘a result of an incorrect application of the
sentencing guidelines.’’ 18 U.S.C. § 3742(a)(1), (2); United
States v. Brooke, 308 F.3d 17, 19 (D.C. Cir. 2002). A refusal
to depart based on the district court’s mistaken belief that it
lacked authority to do so is reviewable as an incorrect appli-
cation of the Guidelines, but a determination that the particu-
lar circumstances of a case do not warrant an exercise of the
court’s departure authority is a matter of discretion that we
cannot overturn. United States v. Pinnick, 47 F.3d 434, 439
(D.C. Cir. 1995).
In support of his primary contention—that the district
court mistakenly thought that it lacked authority to depart—
Joaquin argues that if the court had merely decided that the
facts did not warrant a sentence reduction, it never would
have urged defense counsel to appeal, for it would have
known that Pinnick and other D.C. Circuit case law preclude
review of exercises of departure discretion. Read in isolation,
the district court’s reference to an appeal is certainly ambigu-
5
ous. But read on. ‘‘I feel compelled to deny the motion.
Not because I don’t have any legal authority to grant it, but
because I just conclude that this is not a case that falls within
the departure downward case law on this issue.’’ Sentencing
Tr. at 28 (emphasis added). Given that the district court
made this statement just before pronouncing Joaquin’s actual
sentence, we cannot conclude that the court believed that a
departure lay outside the scope of its discretion.
Contrary to the government’s argument, however, conclud-
ing that the district court understood the scope of its authori-
ty does not deprive us of jurisdiction because Joaquin argues
that the court, in the course of determining that a departure
was unwarranted, misapplied the Guidelines in other ways.
See, e.g., United States v. Sammoury, 74 F.3d 1341, 1345
(D.C. Cir. 1996) (misapplication of the Guidelines may occur
as the result of either legal or factual errors). Although
Joaquin concedes that he failed to raise in the district court
his arguments concerning the arrest records and the stale
conviction, criminal defendants may prevail on unpreserved
issues if they can demonstrate that an error is ‘‘plain or
obvious under current law, affects substantial rights, and
seriously affects the fairness, integrity, or public reputation of
judicial proceedings.’’ United States v. Smith, 267 F.3d 1154,
1160 (D.C. Cir. 2001) (internal quotation marks and citation
omitted); see also Fed. R. Crim. P. 52(b). An error affects
substantial rights if it is prejudicial. United States v. Vena-
ble, 269 F.3d 1086, 1089 (D.C. Cir. 2001). Under plain error
review, defendants bear the burden of persuasion as to preju-
dice, but that burden is ‘‘slightly less exacting’’ with regard to
sentencing proceedings as compared to trial errors, since a
defendant need show only a ‘‘reasonable likelihood’’ that the
error affected the court’s sentence. United States v. Saro, 24
F.3d 283, 286–88 (D.C. Cir. 1994).
We begin with Joaquin’s argument that, in declining to
depart downward, the district court erred by relying on his
prior arrests. Although section 4A1.3 authorizes courts to
consider whether a defendant has engaged in ‘‘prior similar
adult criminal conduct not resulting in a criminal conviction,’’
Joaquin relies on the provision’s statement that ‘‘[h]owever, a
6
prior arrest record itself shall not be considered under
§ 4A1.3.’’ U.S. Sentencing Guidelines Manual § 4A1.3.
Claiming that the presentence report provides no description
of the underlying events, that the record contains no evidence
concerning the arrests, and that he never conceded their
validity, Joaquin argues that the district court relied on his
‘‘prior arrest record itself.’’ Cf. United States v. Ramirez, 11
F.3d 10, 14 (1st Cir. 1993) (per curiam) (sentencing court did
not commit plain error in relying on a presentence report
containing detailed descriptions of defendant’s conduct lead-
ing to his arrest); United States v. Terry, 930 F.2d 542, 545–
46 (7th Cir. 1991) (same).
The government responds first by asserting that Joaquin is
not entitled even to plain error review because he actively
waived the issue when his defense counsel, before arguing
that ‘‘no papered’’ arrests in the District of Columbia system
were too unreliable to consider in assessing Joaquin’s risk of
recidivism, stated, ‘‘[t]he court can obviously consider any-
thing it wants at sentencing.’’ Sentencing Tr. at 18. At oral
argument, however, government counsel candidly conceded
that ‘‘you could look at it either way.’’ Indeed, at most
Joaquin ‘‘may have acquiesced in what he now claims is error,
but he did not invite it.’’ In re Sealed Case, 108 F.3d 372, 374
(D.C. Cir. 1997). Nothing in defense counsel’s passing com-
ment suggests that he made a conscious, strategic decision to
‘‘intentional[ly] relinquish[ ] or abandon[ ] TTT a known right,’’
United States v. Olano, 507 U.S. 725, 733 (1993) (internal
quotation marks and citation omitted), and his argument that
the arrests were unreliable as a matter of fact in no way
conflicts with Joaquin’s argument here that they are also
unreliable as a matter of law. Cf. United States v. Warren,
42 F.3d 647, 658 (D.C. Cir. 1994) (defendant may not raise
argument on appeal that is directly contradictory to his
affirmative argument to the sentencing judge).
On the merits, the government does not challenge Joaquin’s
assertion that the record contains no information about the
events underlying his arrests. Instead, it argues that be-
cause the prohibition against considering arrest records ap-
pears in a paragraph discussing upward departures, it (1)
7
applies to upward departures only, and (2) even if it also
applies to downward departures, it is not so clear as to
amount to plain error. We disagree on both counts.
Section 4A1.3 starts with an umbrella paragraph stating
that courts may ‘‘consider TTT departing from the otherwise
applicable guideline range’’ only where ‘‘reliable information
indicates that the criminal history category does not ade-
quately reflect the seriousness of the defendant’s past crimi-
nal conduct or the likelihood that the defendant will commit
other crimes.’’ U.S. Sentencing Guidelines Manual § 4A1.3,
¶ 1. The two subsequent paragraphs then discuss upward
and downward departures, respectively. To be sure, the
prohibition that Joaquin relies on appears at the end of the
upward departure paragraph. But if, as the government and
dissent argue, the Sentencing Commission had intended to
bar consideration of arrest records in upward departures
only, it would have stated that prior arrest records shall not
be considered ‘‘in making upward departure decisions,’’ rath-
er than that they shall not be considered ‘‘under § 4A1.3.’’
Id., ¶ 2 (emphasis added). After all, the Commission knows
exactly how to focus on upward departures when it wants to,
as it did in the provision’s immediately preceding sentence.
Reading the two sentences together makes the point crystal
clear:
The court may, after a review of all the relevant informa-
tion, conclude that the defendant’s criminal history was
significantly more serious than that of most defendants
in the same criminal history category, and therefore
consider an upward departure from the guidelines.
However, a prior arrest record itself shall not be consid-
ered under § 4A1.3.
Id. (emphasis added). Focusing on the word ‘‘[h]owever,’’ the
dissent argues that the arrest record prohibition modifies
only the preceding sentence. But this ignores the fact that
the prohibition expressly applies ‘‘under § 4A1.3’’ and that
section 4A1.3 applies to both upward and downward depar-
tures. Moreover, we can see no reason—nor does the gov-
ernment offer one—for considering prior arrest records any
8
more ‘‘reliable’’ for downward departures than they are for
upward departures. Given the Commission’s insistence that
district courts act only on reliable information and the appli-
cability of the arrest record prohibition ‘‘under § 4A1.3,’’ the
Guidelines authors had no reason to repeat the prohibition at
the end of section 4A1.3’s third paragraph discussing down-
ward departures, as the government would apparently re-
quire. The prohibition thus applies to both types of depar-
tures.
This leaves the question whether section 4A1.3 is so clear
that the district court’s reliance on Joaquin’s arrest records
amounted to plain error. The government argues that the
prohibition is ambiguous because, again, it appears in the
paragraph on upward departures. This argument might have
some merit if the prohibition had stated merely ‘‘a prior
arrest record itself shall not be considered,’’ since readers
might then wonder whether it applied only to the upward
departure paragraph. But the sentence is not at all ambigu-
ous, for it states expressly that prior arrest records shall not
be considered ‘‘under § 4A1.3.’’ Because section 4A1.3 gov-
erns both upward and downward departures, we think it
‘‘obvious’’ that the arrest record prohibition applies to down-
ward departure motions. Smith, 267 F.3d at 1160.
The government calls our attention to United States v.
Miller, 263 F.3d 1, 4–5 (2d Cir. 2001) (per curiam), which
found the sentence location theory sufficiently plausible to
defeat plain error review. In reaching this conclusion, the
court characterized the arrest record prohibition as occurring
‘‘at the end of the second of two paragraphs that deal solely
with upward departures.’’ Id. at 5. However, the first of the
two paragraphs—the umbrella paragraph that begins section
4A1.3—is not limited to upward departures and instead em-
phasizes the need for basing all departure decisions on reli-
able information. That paragraph speaks in general terms—
‘‘the court may consider imposing a sentence departing from
the otherwise applicable guideline range’’—and without refer-
ence to direction upward or downward. U.S. Sentencing
Guidelines Manual § 4A1.3, ¶ 1 (emphasis added). Equally
telling, the first paragraph also states that departures may be
9
considered in any case in which reliable information indicates
that the defendant’s criminal history category ‘‘does not
adequately reflect’’ the seriousness of the defendant’s past
conduct or risk of recidivism. Id. By contrast, the next two
paragraphs limit upward departures to situations in which a
defendant’s criminal history category ‘‘significantly under-
represents’’ the past conduct or risk of recidivism and down-
ward departures to cases in which the category ‘‘significantly
over-represents’’ the conduct or risk of recidivism. Id., ¶¶ 2–
3. By using broader language in the first paragraph, the
Commission made clear that the reliable information require-
ment applies, sensibly, to both types of departures. See
United States v. Webb, 139 F.3d 1390, 1395–96 (11th Cir.
1998) (describing the reliable information requirement as
applying to downward departure decisions); United States v.
Fletcher, 15 F.3d 553, 556 (6th Cir. 1994) (same); United
States v. Gayles, 1 F.3d 735, 739 (8th Cir. 1993) (same). Any
other reading would permit sentencing courts to depart down-
ward on the basis of unreliable information, which cannot be
what the Commission intended.
The government argues that even if section 4A1.3’s reliable
information requirement does apply when a district court
departs downward, ‘‘there is no error, let alone plain error,
that arises from the trial court’s decision to withhold leniency
from an offender who has an extensive arrest record’’ because
the defendant bears the burden of proof. Appellee’s Br. at
27–28. We disagree. The Supreme Court has held that
regardless of whether a sentencing court departs upward or
downward, ‘‘[w]hen a reviewing court concludes that a district
court based a departure on both valid and invalid factors, a
remand is required unless it determines the district court
would have imposed the same sentence absent reliance on the
invalid factors.’’ Koon v. United States, 518 U.S. 81, 113
(1996). This rule does not change just because consideration
of valid and invalid factors led the district court to decline to
depart. Otherwise, defendants would have no redress where
a court declines to depart downward on the basis of factors
such as race, religion, and sex that are never relevant to the
determination of a sentence, see U.S. Sentencing Guidelines
10
Manual § 5H1.10, or because it misconstrues the Guidelines
to prohibit consideration of a legitimate mitigating factor.
Because such a refusal to depart rests on a misapplication of
the Guidelines, our case law clearly permits review under
such circumstances. See, e.g., United States v. Rhodes, 145
F.3d 1375, 1383–84 (D.C. Cir. 1998) (remanding where sen-
tencing court committed legal error by refusing to consider a
permissible factor in denying a downward departure motion
under section 5K2.0); United States v. Shoupe, 988 F.2d 440,
447 (3d Cir. 1993) (remanding where sentencing court com-
mitted legal error by refusing to consider permissible factors
in denying a downward departure motion under section
4A1.3).
Of course, even if the district court had not relied on
Joaquin’s arrests, it might have properly concluded that
Joaquin failed to carry his burden of proof to justify a
downward departure—indeed, the court may do so upon
remand. But that possibility does not change the fact that
the court erred by placing evidence that it was barred from
considering on the scales against Joaquin and that such a
misapplication of the Guidelines is subject to appellate review.
18 U.S.C. § 3742(a)(2).
Thus, given that ‘‘failure to follow a clear legal norm may
constitute plain error, without regard to whether the applica-
ble statute or rule previously had been the subject of judicial
construction,’’ United States v. Merlos, 8 F.3d 48, 50 (D.C.
Cir. 1993), we conclude that the district court committed plain
error in considering Joaquin’s ‘‘prior arrest record itself
under § 4A1.3,’’ without supporting evidence indicating that
he had in fact engaged in prior criminal conduct not resulting
in a conviction. U.S. Sentencing Guidelines Manual
§ 4A1.3. The government cannot dispute that there is a
reasonable likelihood that this error prejudiced Joaquin, since
the district court specifically stated that ‘‘[t]his number of
arrests TTT for a young man of 29, is still an extraordinary
number of arrests’’ immediately before concluding that Joa-
quin presented a significant risk of recidivism. Sentencing
Tr. at 27. Because reliance on information expressly deemed
unreliable by the Sentencing Commission seriously affects the
11
fairness and integrity of judicial proceedings, we see no
reason for declining to exercise our discretion to correct the
plain error by vacating Joaquin’s sentence and remanding the
case for further consideration. Saro, 24 F.3d at 288, 292.
In view of this disposition, we need not address Joaquin’s
argument that the district court, in calculating his criminal
history category, also committed plain error by counting his
February 1991 conviction, which occurred more than ten
years before the instant offense. See U.S. Sentencing Guide-
lines Manual § 4A1.1, cmt. n.2. The government does not
dispute that this violated the Guidelines, but contends that
Joaquin cannot show prejudice because even without counting
the conviction he still would have been placed in Category IV.
Since the district court will have to reconsider its departure
decision on remand anyway, we see no need to determine
whether it was reasonably likely that the court would have
granted a departure initially had it realized that Joaquin was
at the bottom of Category IV rather than near the top. See,
e.g., United States v. Lastra, 973 F.2d 952, 956 (D.C. Cir.
1992).
We vacate Joaquin’s sentence and remand the case for
resentencing consistent with this opinion.
So ordered.
1
Karen LeCraft Henderson, Circuit Judge, concurring in part
and dissenting in part:
While I otherwise concur in the majority opinion, I dissent
from the remand for resentencing because I perceive no
error, plain or not, by the sentencing judge. The court used
Joaquin’s arrest record in declining to depart downward
based on Joaquin’s assertion that his ‘‘criminal history catego-
ry significantly over-represents the seriousness of [his] crimi-
nal history or the likelihood that [he] will commit further
crimes,’’ pursuant to the third paragraph of Guidelines sec-
tion 4A1.3, which is devoted to downward departures.
U.S.S.G. § 4A1.3 ¶ 3 (emphasis added). Not only does the
language on which the majority relies for error (‘‘However, a
prior arrest record itself shall not be considered under
§ 4A1.3’’) appear within the second paragraph of section
4A1.3, which the majority itself characterizes as ‘‘the upward
departure paragraph,’’ Maj. Op. at 7, the inclusion of the
adversative ‘‘however’’ directly connects the language to the
preceding sentence which authorizes the court to ‘‘conclude
that the defendant’s criminal history was significantly more
serious than that of most defendants in the same criminal
history category, and therefore consider an upward departure
from the guidelines.’’ U.S.S.G. § 4A1.3 ¶ 2 (emphasis added).
The reason for limiting the arrest record proscription to
upward departures paragraph is obvious. The proscription
rests on a determination that an arrest record is not the kind
of ‘‘reliable information’’ that section 4A1.3 requires as the
basis to depart from the Guidelines’ prescriptions. See
U.S.S.G. § 4A1.3 ¶ 1 (‘‘If reliable information indicates that
the criminal history category does not adequately reflect the
seriousness of the defendant’s past criminal conduct or the
likelihood that the defendant will commit other crimes, the
court may consider imposing a sentence departing from the
otherwise applicable guideline range.’’); id. commentary
(‘‘This policy statement authorizes the consideration of a
departure from the guidelines in the limited circumstances
where reliable information indicates that the criminal history
category does not adequately reflect the seriousness of the
defendant’s criminal history or likelihood of recidivismTTTT’’).
As a record of additional crimes, however, an arrest record
will never be used to support a downward departure. Below,
2
the court did not rely on Joaquin’s arrest record as a basis for
making a departure at all but considered it only in declining
to accept Joaquin’s argument that his case lay outside the
Guidelines’ heartland and warranted a downward departure.
The decision to adhere to the Guidelines’ directives and not to
depart is, as the majority recognizes, discretionary to the
point of being unreviewable. See Maj. Op. at 4 (citing United
States v. Pinnick, 47 F.3d 434, 439 (D.C. Cir. 1995)). The
information supporting it therefore need not meet the stan-
dard of reliability required in making a departure. See
United States v. Miller, 263 F.3d 1, 4–5 (2d Cir. 2001) (noting
as reason not to apply arrest record prohibition to decision
not to depart downward that ‘‘[c]ourts TTT are generally
subject to greater scrutiny when they choose to depart than
when they opt to remain within the applicable sentencing
range’’); cf. United States v. Chavez–Chavez, 213 F.3d 420,
422 (7th Cir. 2000) (requirement that ‘‘reliable information’’
be used ‘‘when calculating a sentencing range under the
guidelines, or departing upward to impose a higher sentence’’
does not apply ‘‘when a judge imposes a sentence within the
guideline range (or, here, decides to curtail the extent of a
downward departure)’’; ‘‘[w]hen seeking a downward depar-
ture the defendant bears the burden, and the judge may
disbelieve the defendant’s position without requiring addition-
al evidence’’).
Finally, even if the arrest record proscription is not unam-
biguously restricted to upward departures (which I believe it
is), neither does it unambiguously extend to downward depar-
tures, given the language and structure of the departure
provision as I have limned it above. Thus, Joaquin has not
met his burden under the applicable plain error standard.
See United States v. Miller, 263 F.3d at 4–5 (2d Cir. 2001)
(concluding ‘‘a district court’s reliance on prior arrest records
as a basis for refusing to depart downward does not consti-
tute ‘plain error’ ’’ because it is not ‘‘implausible that the
Sentencing Commission meant to prohibit the use of prior
arrest records only in the context of upward departures’’).