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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 30, 2004 Decided August 3, 2004
No. 03-3118
UNITED STATES OF AMERICA,
APPELLANT
v.
CHRISTOPHER E. RILEY,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 02cr00314–01)
Valinda Jones, Assistant U.S. Attorney, argued the cause
for appellant. With her on the briefs were Roscoe C. How-
ard, Jr., U.S. Attorney, and John R. Fisher, Assistant U.S.
Attorney. 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
David W. Bos, Assistant Federal Public Defender, argued
the cause for appellee. With him on the brief was A. J.
Kramer, Federal Public Defender.
Before: ROGERS, TATEL, and GARLAND, Circuit Judges.
Opinion for the Court filed by Circuit Judge GARLAND.
Opinion concurring in part and dissenting in part filed by
Circuit Judge ROGERS.
GARLAND, Circuit Judge: The United States appeals from a
judgment of the United States District Court, granting defen-
dant Christopher Riley a downward departure from the sen-
tence required by the United States Sentencing Guidelines.
Reviewing the judgment de novo, we hold that the departure
was improper and remand the case for resentencing.
I
On April 24, 2003, Riley pled guilty to a federal grand
jury’s superceding indictment charging him with one count of
possession of a firearm and ammunition by a convicted felon,
in violation of 18 U.S.C. § 922(g)(1). Riley did not enter into
a plea agreement with the government or otherwise stipulate
in writing to the facts of his crime. The relevant events are,
however, partially chronicled in a government proffer offered
at the plea hearing, with which the defendant said he agreed.
04/24/03 Tr. 11–13. They are also chronicled in a Presentence
Investigation Report (PSR) prepared by the United States
Probation Office, which the defendant agreed contained no
material inaccuracies. The following recitation begins with
information from these sources.
At approximately 6:45 on the morning of May 7, 2002, a
Special Agent of the Federal Bureau of Investigation (FBI)
was on his way to an FBI field office in downtown Washing-
ton, D.C., when he noticed a brown Chevrolet Suburban
automobile parked directly across the street from the field
office. The car, which bore Maryland license plates, had two
large antennae, a Fraternal Order of Police sticker on the
back window, a red light, and a Metropolitan Police Depart-
ment (MPD) placard on the dashboard. Riley was inside the
car. The FBI agent stopped, called the FBI Communications
3
Center to check the car’s license plates and, while waiting for
a response, observed Riley get out of the car and walk toward
a building. After being advised that the car had been report-
ed stolen, the agent approached the building as Riley came
out. The agent asked Riley if he was the car’s owner, and
Riley said that he was.
The FBI agent then asked Riley if he had any weapons;
Riley said that he did. A search of his person revealed a
fully-loaded, semi-automatic handgun in a holster on his hip.
Riley then told the agent that he was an MPD chaplain and
produced a Police Department identification card and badge.
He admitted that he was not a sworn police officer and that
he did not have a permit to carry a gun in the District. He
did claim, however, to have a permit to carry the gun in
Maryland. (Riley’s counsel repeated that claim at the plea
hearing.) As for the car, Riley explained that he had just
purchased it from a friend, and immediately called the friend
to confirm for the agent that a sale had transpired. Mean-
while, MPD officers arrived on the scene and arrested Riley.
The PSR reviewed Riley’s criminal history and offense
level under the Sentencing Guidelines. It noted that Riley
had been convicted in 1989 in Virginia federal court for
transporting a firearm across state lines while under felony
indictment, in violation of 18 U.S.C. § 922(n). That convic-
tion was the predicate offense for the § 922(g)(1) charge.
The PSR also noted that Riley had several other prior
convictions.1 Because all of Riley’s convictions were more
than 10 years old and none involved more than 13 months’
imprisonment, the PSR assigned him zero criminal history
points, yielding the lowest criminal history category of I.
PSR ¶¶ 27–32; see U.S. SENTENCING GUIDELINES MANUAL
§ 4A1.2(e) (2002) [hereinafter U.S.S.G.]. The PSR also calcu-
lated a base offense level of 14 under U.S.S.G.
1Those included bank fraud (by using a false identification card),
which was the underlying felony for the § 922(n) offense; a 1989
District of Columbia conviction for possessing a prohibited weapon;
other D.C. convictions for possessing a false identification document
with intent to defraud, and for theft of stolen property; and a 1990
Virginia conviction for impersonating a police officer.
4
§ 2K2.1(a)(6)(A) — the guideline applicable to violations of
§ 922 — and reduced it by two levels for acceptance of
responsibility. PSR ¶¶ 16–25.
Riley’s criminal history category and offense level generat-
ed a guidelines sentencing range of 10 to 16 months’ impris-
onment. See PSR ¶ 72 (citing U.S.S.G. ch. 5, pt. A (1992)).
As the PSR reported, that range rendered Riley ineligible for
probation. Id. ¶ 10; see U.S.S.G. § 5B1.1, cmt. n.2; id.
§ 5C1.1(f). The Probation Office reported that it had re-
ceived no information that would justify a departure from the
guidelines range. PSR ¶ 84.
In a written motion to the district court, filed two days
before the sentencing hearing, Riley asserted that there was
more to the story than was reflected in the plea hearing and
PSR. See Def.’s Mot. for Downward Departure [hereinafter
Motion]. He contended that, on the evening of May 6, 2002,
he had delivered an invocation at an annual memorial service
for law enforcement officers. He then participated in a ‘‘ride-
along’’ with an MPD officer, and eventually accompanied that
officer to a 24–hour shooting range in Maryland. In the
morning, he drove directly to work from the shooting range.
According to Riley, he was a switching engineer employed as
a ‘‘Verizon Federal Contractor’’ and assigned to work at an
office of the Bureau of Alcohol, Tobacco and Firearms (ATF)
near where he was intercepted by the agent. Had it not been
for his arrest, he said, he ‘‘would have secured the weapon at
the ATF office upon his arrival.’’ Id.
Based on this account of his offense conduct, Riley asked
the court to depart downward four offense levels so that he
could be sentenced to three years’ probation. He made this
motion pursuant to two provisions of the guidelines manual:
U.S.S.G. § 5K2.11, which authorizes a departure if the defen-
dant’s conduct did not threaten the harm sought to be
prevented by his statutory offense; and U.S.S.G. § 5K2.0,
which authorizes a departure if circumstances distinguish a
defendant’s conduct from the ‘‘heartland’’ of offenses covered
by the applicable offense guideline. The government re-
sponded orally at the hearing. The prosecutor did not ad-
5
dress the truth of Riley’s factual claims, but contended that
they did not justify departure.
At the sentencing hearing on August 29, 2003, the district
court granted Riley’s motion for a four-level departure and
sentenced him to three years’ probation. Noting that Riley
was ‘‘gainfully employed,’’ the court said:
He hasn’t done anything wrong since 1989. He supports
his children or tries to support his children. He seems
to me to be an ideal candidate for probation, and I see no
point at all in sending him to prison at this point. I am
going to grant the Motion for Departure, and you can put
me on Mr. Ashcroft’s list.
08/29/03 Tr. 6. Although the court also said that the sentenc-
ing issue was ‘‘the reason for which he possessed the weap-
on,’’ id. at 5, it made no mention of the circumstances of
Riley’s arrest or of his representations regarding the shooting
range. The court later noted on its judgment order that it
departed downward ‘‘Upon motion of defendant — §§ 5K.2
and 5K.11 [sic],’’ and checked a box indicating that it adopted
the factual findings in the PSR. The government contends
that the record does not support a downward departure
under either U.S.S.G. § 5K2.0 or § 5K2.11.
II
Our standard of review of decisions to depart from an
otherwise applicable guidelines range has recently changed.
Previously, pursuant to 18 U.S.C. § 3742(e), we reviewed a
district court’s factual findings for clear error and its decision
to depart from the guidelines for abuse of discretion. See
Koon v. United States, 518 U.S. 81, 97–99 (1996). In 2003,
however, Congress amended § 3742(e) in § 401(d) of the
Prosecutorial Remedies and Tools Against the Exploitation of
Children Today Act (PROTECT Act), Pub. L. No. 108–21, 117
Stat. 650 (Apr. 30, 2003). Although courts of appeals must
still ‘‘accept the findings of fact of the district court unless
they are clearly erroneous,’’ we must now review a district
court’s decision to depart from the guideline range ‘‘de novo.’’
18 U.S.C. § 3742(e); see United States v. Mallon, 345 F.3d
6
943, 946 (7th Cir. 2003).2 Those circuits that have decided the
issue have held that the judicial review provision of the
PROTECT Act applies with immediate effect, and without
constitutional disability, to appellate proceedings after April
30, 2003, the date the PROTECT Act was signed into law.3
Today, we join them.
Although the PROTECT Act became law five months
before Riley filed this appeal and four months before he was
sentenced, the conduct for which he was convicted had taken
place a year earlier. Riley argues that applying the Act’s de
novo standard to review sentences for crimes committed
before April 30, 2003 would violate the presumption against
the retroactive application of statutes. See, e.g., Landgraf v.
USI Film Prods., 511 U.S. 244, 268 (1994). But a ‘‘statute
does not operate ‘retrospectively’ merely because it is applied
in a case arising from conduct antedating the statute’s enact-
ment.’’ Id. at 269. Rather, to determine retroactive effect,
‘‘the court must ask whether the new provision attaches new
2 Specifically, we review ‘‘de novo the district court’s application
of the guidelines to the facts,’’ to determine whether ‘‘the sentence
departs from the applicable guideline range 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 the case.’’ 18 U.S.C. § 3742(e) &
(e)(3)(B). We continue, however, to ‘‘give due deference to the
district court’s application of the guidelines to the facts’’ in deter-
mining whether a sentence departs from the applicable guidelines
range ‘‘to an unreasonable degree.’’ Id. § 3742(e) & (e)(3)(C).
3See United States v. Frazier, 340 F.3d 5, 14 (1st Cir. 2003);
United States v. Kostakis, 364 F.3d 45, 47 (2d Cir. 2004); United
States v. Stockton, 349 F.3d 755, 764 & n.4 (4th Cir. 2003); United
States v. Bell, 371 F.3d 239, 241–42 (5th Cir. 2004); United States v.
Mallon, 345 F.3d 943, 946 (7th Cir. 2003); United States v. Hut-
man, 339 F.3d 773, 775 (8th Cir. 2003); United States v. Daychild,
357 F.3d 1082, 1106 (9th Cir. 2004); United States v. Lang, 364
F.3d 1210, 1214 n.1 (10th Cir. 2004); United States v. Kim, 364 F.3d
1235, 1240 n.3 (11th Cir. 2004); see also United States v. D’Amario,
350 F.3d 348, 356 (3d Cir. 2003) (finding it unnecessary to decide
which standard of review to apply).
7
legal consequences to events completed before enactment.’’
Id. at 269–70. The de novo review provision at issue here
does not change the consequences of Riley’s unlawful acts.
As the Seventh Circuit has explained, the provision:
TTT does not change the statutory penalties for crime,
affect the calculation of the Guidelines range, or alter the
circumstances under which departures are permitted. It
changes who within the federal judiciary makes a partic-
ular decision, but not the legal standards for that deci-
sion. Instead of one district judge, three appellate
judges now decide whether a departure is justified.
Mallon, 345 F.3d at 946. In this respect, the provision is like
‘‘a new jurisdictional rule,’’ which ‘‘takes away no substantive
right but simply changes the tribunal that is to hear the
case.’’ Landgraf, 511 U.S. at 274. In such circumstances,
‘‘[p]resent law normally governs.’’ Id.
Riley also contends that applying the PROTECT Act would
violate the Constitution’s Ex Post Facto Clause, U.S. CONST.
Art. I, § 9, cl. 3, ‘‘because the Act is punitive in nature.’’
Appellee’s Br. at 17; see Smith v. Doe, 538 U.S. 84, 92 (2003)
(‘‘If the intention of the legislature was to impose punishment,
that ends the [Ex Post Facto] inquiry.’’). But there is
nothing — and Riley does not contend that there is any-
thing — punitive about the Act’s new standard of appellate
review. Instead, he contends that the Act is punitive when
‘‘considered as a whole,’’ Appellee’s Br. at 17, referring to the
Act’s ‘‘substantive’’ as well as procedural provisions, id. at 18.
Riley is presumably alluding to sections of the Act that
impose new or increased criminal penalties for specified
conduct. See, e.g., 18 U.S.C. § 2251(e) (increased penalty for
sexual exploitation of children); id. § 3553(b)(2) (new sen-
tencing rules for defendants convicted of ‘‘[c]hild crimes and
sexual offenses’’). Riley, however, has no standing to com-
plain about provisions that do not apply to him, and those
sections therefore do not affect our analysis here.4
4The cases Riley cites for the proposition that a statute must be
examined as a whole to determine whether it is punitive are
8
Finally, Riley draws our attention to two other new provi-
sions of the PROTECT Act that he contends make it unfair to
apply any part of the Act to him. First, a district court’s
reasons for departing from a guidelines range must now ‘‘be
stated with specificity in the written order of judgment and
commitment,’’ 18 U.S.C. § 3553(c)(2), putting a greater pre-
mium on factfinding than perhaps the district judge realized.
Although the prior statute had also required the court to
state ‘‘the specific reason’’ for a departure, the reason had to
be stated only ‘‘in open court.’’ See id. § 3553(c) (2000)
(amended at 18 U.S.C. § 3553(c) (2004)). This difference has
no consequence here, however, because even treating the
court’s oral statements as if they had been written, and even
accepting the defendant’s version of the facts, we conclude in
Parts III–V that the departure was unwarranted.
Second, Riley notes the PROTECT Act provides that, if an
appellate court remands for resentencing, the district court
may not impose a sentence outside the applicable guidelines
range:
except upon a ground that — (A) was specifically and
affirmatively included in the written statement of reasons
required by section 3553(c) in connection with the previ-
ous sentencing of the defendant TTT; and (B) was held by
the court of appeals, in remanding the case, to be a
permissible ground of departure.
18 U.S.C. § 3742(g)(2). Riley worries that this provision
could unfairly deprive him of the right to raise additional
grounds that he has since identified to support his reduced
sentence. Again, this provision has no consequence here. As
discussed in Part V, we have considered the additional
grounds that Riley proposes, including those arguably raised
inapposite, as they undertook such examinations only to determine
whether individual statutory provisions were truly more onerous
than their predecessors. See, e.g., Dobbert v. Florida, 432 U.S. 282,
294 (1997); United States v. Shorty, 159 F.3d 312, 317 (7th Cir.
1998). There is nothing in the substantive provisions of the PRO-
TECT Act that would shed such light on the de novo review
provision.
9
for the first time on appeal, and conclude that none justifies
the sentence pronounced by the district court.
III
The first ground for departure upon which the district
court relied, U.S.S.G. § 5K2.11, is entitled ‘‘Lesser Harms’’
and permits a downward departure if the defendant’s conduct
did ‘‘not cause or threaten the harm or evil sought to be
prevented by the law proscribing the offense at issue.’’5
Riley asserts that the harm sought to be prevented by
§ 922(g)(1) is the possession of a firearm for an unlawful
purpose, and that because he had no unlawful purpose, he is
eligible for departure under § 5K2.11.
Section 922(g), however, sweeps more broadly than Riley
admits, drawing the criminal line at possession, not purpose.
The statute declares it flatly ‘‘unlawful for any [prohibited]
person TTT to ship or transport in interstate or foreign
commerce, or possess in or affecting commerce, any firearm
or ammunition,’’ 18 U.S.C. § 922(g), and includes felons on
the list of prohibited persons, see id. § 922(g)(1). To commit
the crime, the felon need only possess the gun ‘‘knowingly.’’
Id. § 924(a)(2). As the Supreme Court has repeatedly noted,
the federal laws that bar felons from possessing firearms
have ‘‘a broad prophylactic purpose.’’ Dickerson v. New
Banner Inst., 460 U.S. 103, 118 (1983) (describing the purpose
of Title IV of the Gun Control Act of 1968, a predecessor of
18 U.S.C. § 922(g)).6 And while there certainly are statutory
5Section 5K2.11 also articulates a second theory of ‘‘lesser
harms,’’ permitting a district court to depart downward if the
defendant committed the crime ‘‘to avoid perceived greater harm.’’
U.S.S.G. § 5K2.11. That theory is not at issue here.
6 See, e.g., Lewis v. United States, 445 U.S. 55, 63 (1980) (holding
that former felon-in-possession statute, 18 U.S.C. § 1202, ‘‘was a
sweeping prophylaxis, in simple terms, against misuse of firearms’’);
Huddleston v. United States, 415 U.S. 814, 824 (1974) (explaining,
with respect to Title IV, that the ‘‘principal purpose of federal gun
control legislation TTT was to curb crime by keeping firearms out of
the hands of those not legally entitled to possess them because of
10
provisions that are concerned with the defendant’s purpose in
possessing the firearm, see, e.g., 18 U.S.C. § 924(c) (prohibit-
ing using or carrying a firearm during and in relation to a
crime of violence or drug trafficking offense, or possessing a
firearm in furtherance of any such crime), § 922(g)(1) is not
one of them.7 Accordingly, the mere absence of an unlawful
purpose does not warrant a departure under § 5K2.11.
Riley notes that § 5K2.11 provides two examples of situa-
tions in which a departure might be warranted because the
defendant’s conduct does not threaten the evil sought to be
proscribed by the statute, and he contends that those exam-
ples counsel a departure in his case. The examples are
‘‘where a war veteran possessed a machine gun or grenade as
a trophy, or a school teacher possessed controlled substances
for display in a drug education program.’’ U.S.S.G. § 5K2.11.
Tellingly, however, neither example involves a statutory bar
on possession by a prohibited person; rather, each involves a
ban on a particular object because of concern over how that
object might be used. The same is true of the two cases that
Riley cites involving departures where the defendant violated
26 U.S.C. § 5861, which prohibits the possession of certain
unregistered, sawed-off firearms.8
age, criminal background, or incompetency’’) (internal citation and
quotation marks omitted); see also cases cited infra note 7.
7 See United States v. Cutright, 2000 WL 1663451, at *4 (4th Cir.
2000) (unpublished op.) (‘‘[A] conviction under § 922(g) focuses on
the defendant’s status as a convicted felon, not on the reason for
possessing a firearm.’’); United States v. Reynolds, 215 F.3d 1210,
1214 (11th Cir. 2000) (stating that § 922(g) does not ‘‘focus on the
motive or purpose of the current possession of the firearms’’);
United States v. Prator, 939 F.2d 844, 846 (9th Cir. 1991) (‘‘Section
922(g)(1) makes the act of receipt of a firearm by a felon a crime
without regard to his motive for such possession.’’).
8 See United States v. White Buffalo, 10 F.3d 575, 576 (8th Cir.
1993) (affirming § 5K2.11 departure for a Native American, with no
prior convictions, who lived in a remote part of a reservation and
used the shotgun ‘‘to shoot skunks, weasels, and raccoons that killed
his chickens’’); United States v. Hadaway, 998 F.2d 917, 919 (11th
Cir. 1993) (remanding for possible departure under § 5K2.11 where
11
Nor can Riley find support in the only appellate cases that
have even entertained the possibility of a § 5K2.11 departure
for a violation of § 922(g)(1). In those cases, the courts
suggested that criminalizing the innocent and transitory pos-
session of a weapon might be outside the purpose of
§ 922(g).9 Similarly, this circuit has held that innocent pos-
session could be a defense in a § 922(g) case in which a
delivery truck driver testified that he had found the gun in a
paper bag near a school, and that he took possession only to
keep it out of the children’s reach, intending to deliver it to a
police officer he knew would be at his next stop. United
States v. Mason, 233 F.3d 619, 621 (D.C. Cir. 2001). To
qualify for such a defense, we held that the record must show
that the defendant’s possession was ‘‘transitory’’ and that he
‘‘took adequate measures to rid himself of possession of the
firearm as promptly as reasonably possible.’’ Id. at 624.
Riley’s version of his conduct does not establish transitory
possession, or any similar circumstance. He was not, for
example, apprehended at a shooting range. He did say that
he used the gun at a range, but he did not say that it first
came into his possession at the range, or that he did not
a non-felon defendant claimed to have traded a bucket of sheetrock
mud for a sawed-off shotgun, ‘‘intending to keep it as a curiosity or
to use it for parts’’); see also United States v. Bristow, 110 F.3d
754, 758 n.5 (11th Cir. 1997) (distinguishing Hadaway and other
§ 5861 departure cases because in those cases ‘‘the object of the
possession, the unregistered, sawed-off shotgun, causes the posses-
sion to be unlawful,’’ while in a § 922(g)(1) case ‘‘the classification of
the possessor as a convicted felon causes the possession to be
unlawful’’).
9 See United States v. Clark, 128 F.3d 122, 123 (2d Cir. 1997)
(declaring that a departure ‘‘might have been’’ available under
§ 5K2.11, ‘‘depending on whether the defendant was to retain
possession of the gun for only a brief time necessary to deliver or
send it to his brother [as a gift] and whether, prior to delivery, the
gun would remain readily accessible to the defendant’’); United
States v. Lewis, 249 F.3d 793, 797 (8th Cir. 2001) (holding that
‘‘briefly possessing a firearm in order to pawn it to pay bills’’ was
not the kind of harm envisioned by § 922(a)(6) and (g)(1)).
12
intend to reclaim it from its ‘‘secured’’ location when it was
time to leave work. To the contrary, he had obtained a
Maryland permit for the weapon. Accordingly, even assum-
ing the facts agreed to by Riley, this case involves a felon who
possessed a firearm for an extended period of time, who
carried that weapon fully loaded on his person near a federal
building in downtown Washington, D.C., and who evidenced
no intention to permanently relinquish it. The purpose of
§ 922(g) was to criminalize just such behavior.10
IV
The second basis for the district court’s departure was
U.S.S.G. § 5K2.0, which states that ‘‘the sentencing court
may impose a sentence outside the range established by the
applicable guidelines, if the court finds ‘that there exists an
aggravating or mitigating circumstance of a kind, or to a
degree, not adequately taken into consideration by the Sen-
tencing Commission in formulating the guidelines that should
result in a sentence different from that described.’ ’’ U.S.S.G.
§ 5K2.0 (quoting 18 U.S.C. § 3553(b)). As the guidelines
manual explains:
The Commission intends the sentencing courts to treat
each guideline as carving out a ‘heartland,’ a set of
typical cases embodying the conduct that each guideline
describes. When a court finds an atypical case, one to
10 Riley also suggests that the purpose of § 922(g)(1) is merely to
keep firearms out of the hands of people who are potentially
dangerous or irresponsible, and that this purpose is served only
where the defendant’s predicate offense involved danger or violence.
We reject this contention for the same reasons discussed above.
Section 922(g)(1) applies to all felons regardless of the nature of
their prior crimes. Moreover, as discussed in Part IV, to the extent
that the nature of the predicate felony is relevant to sentencing, the
offense guideline under which Riley was convicted already took that
into account. Compare U.S.S.G. § 2K2.1(a)(6) (mandating base
offense level of 14 if the defendant was simply a prohibited person),
with id. § 2K2.1(a)(1)-(4) (mandating base offense level of at least
20 if the defendant was previously convicted of a crime of violence
or controlled substance offense).
13
which a particular guideline linguistically applies but
where conduct significantly differs from the norm, the
court may consider whether a departure is warranted.
U.S.S.G. ch. 1, pt. A, intro. cmt. 4(b); see also id. § 5K2.0,
cmt. In his motion for a downward departure, Riley argued
that his innocent, sporting purpose for possessing the gun
distinguished his case from the § 922(g)(1) heartland and
entitled him to a § 5K2.0 departure. Riley is wrong for three
reasons.
First, Riley’s argument about ‘‘the heartland’’ of
§ 922(g)(1) largely repeats his argument about ‘‘lesser
harms.’’ See United States v. Rojas, 47 F.3d 1078, 1082 n.5
(11th Cir. 1995) (noting that implicit in the court’s rejection of
a departure under § 5K2.11 ‘‘is a finding that [the defen-
dant’s] case does not warrant a downward departure because
it involves circumstances that distinguish it ‘from the ‘‘heart-
land’’ cases covered by the guidelines’ ’’) (quoting U.S.S.G.
§ 5K2.0). But as we have explained, the statute intended to
proscribe, and the guidelines to punish, precisely this case.
Cases in which the defendant had an unlawful purpose —
such as to use the weapon in a violent or drug trafficking
crime — are in the heartland of other offenses, not of
§ 922(g). See, e.g., 18 U.S.C. § 924(c); see also United States
v. Doe, 960 F.2d 221, 224–25 (1st Cir. 1992) (noting that
‘‘simple possession, even by a felon, takes place in a variety of
ways TTT many, perhaps most, of which do not involve likely
accompanying violence’’).
Second, the Supreme Court has instructed that courts
should not depart based on a factor that the applicable
offense guideline has already taken into account, unless that
factor ‘‘is present to an exceptional degree’’ — that is, unless
it ‘‘is present to a degree substantially in excess of that which
ordinarily is involved in the offense.’’ Koon, 518 U.S. at 95–
96 (quoting U.S.S.G. § 5K2.0).11 In this case, the relevant
11 To be more precise, this is the test Koon said applies if the
factor is one that the guidelines indicate is an ‘‘encouraged’’ basis
for departure. Although § 5K2.11 does make ‘‘lesser harms’’ an
encouraged factor, for the reasons discussed above we do not
14
offense guideline, § 2K2.1, does take purpose into account.
Riley was assigned a base offense level of 14 under that
guideline because he was a ‘‘prohibited person’’ (a felon) when
he committed the offense. See PSR ¶ 16 (citing U.S.S.G.
§ 2K2.1(a)(6)(A)). The same guideline, however, would have
increased Riley’s base offense level if he had used or pos-
sessed the firearm ‘‘in connection with another felony of-
fense.’’ U.S.S.G. § 2K2.1(b)(5). On the other hand, the
guideline would have decreased the base offense level if the
firearm had been possessed for narrowly-defined reasons:
‘‘solely for lawful sporting or collection purposes.’’ Id.
§ 2K2.1(b)(2). As we discuss in Part V.B below, Riley does
not qualify for a decrease on that ground. But the fact that
the guideline takes into account the circumstances in which a
defendant’s purpose should matter — as either an aggrava-
ting or a mitigating factor — counsels strongly against per-
mitting purpose to serve also as a ground for departure
unless it is truly ‘‘exceptional.’’ Riley’s purpose plainly was
not.
Third, were we to accept that possession without an unlaw-
ful purpose is outside the § 922(g) heartland, there would be
nothing left of that heartland. Guideline provision § 5K2.6
encourages upward departure ‘‘[i]f a weapon TTT was used or
possessed in the commission’’ of an offense, and § 5K2.9
similarly encourages upward departure ‘‘[i]f the defendant
committed the offense in order to facilitate TTT the commis-
sion of another offense.’’ These provisions suggest that it is
an unlawful purpose — not a neutral or ‘‘innocent’’ one —
that is outside the heartland of cases.
regard Riley’s case as falling within its compass. Hence, Riley’s
claim is more properly regarded as relying on an ‘‘unmentioned’’
factor, with respect to which Koon suggests an even stricter test.
See Koon, 518 U.S. at 96 (admonishing courts to ‘‘bear in mind the
Commission’s expectations that departures based on grounds not
mentioned in the Guidelines will be ‘highly infrequent’ ’’ (quoting
U.S.S.G. ch. 1, pt. A)).
15
V
Finally, we address two further grounds that Riley ad-
vances to justify the sentence he received.
A
Riley argues that he is entitled to a § 5K2.0 departure by
virtue of a ‘‘combination of factors’’ in addition to those we
have discussed above. Appellee’s Br. at 35. Riley says that
these include the following: his predicate felony conviction
was thirteen years old; the predicate felony was not a violent
crime or drug trafficking offense; he had turned his life
around to become an ordained minister and community lead-
er; and he had been employed with the same company for
eight years. Riley did not advance this theory below: his
sentencing memorandum specified only the two grounds that
we have discussed in Parts III and IV. See Motion. Wheth-
er the district court incorporated this theory into its reason-
ing, however, is less clear. Although the court’s written
comment specified only §§ 5K2.11 and 5K2.0, the court’s
statements at the sentencing hearing emphasized facts that
might encompass this ground, including the fact that Riley
was ‘‘gainfully employed’’ and that ‘‘[h]e supports his children
or tries to support his children.’’ 08/29/03 Tr. 6.12
12 After the district court granted a departure, Riley’s counsel
further asserted that it had been unclear to the defendant that his
thirteen-year-old felony could form the predicate for § 922(g).
08/29/03 Tr. 6–7. Now he advances this as another ground for
departure. We find this assertion factually dubious, given that
Riley had previously been convicted of possessing a gun while under
felony indictment. In any event, because ‘‘[n]othing about the
circumstances of [defendant’s] offense afforded him less notice than
any other offender would have had with respect’’ to the unlawful-
ness of his possession, his conduct is ‘‘not outside the heartland of
such offenses.’’ United States v. Hutzell, 217 F.3d 966, 969 (8th
Cir. 2000); see United States v. Bayles, 310 F.3d 1302, 1311 (10th
Cir. 2002) (holding that the ‘‘mere fact that [the defendant] was
unaware that § 922(g)(8) prohibited his possession of firearms after
the issuance of the [domestic violence] protective order does not
remove his conduct from the heartland of § 922(g)(8) cases’’).
16
These grounds are, in any event, insufficient to warrant a
departure in Riley’s case. The fact that Riley’s predicate
conviction was old and for a non-violent crime, and the fact
that he had no recent convictions, are not exceptional circum-
stances. The age of Riley’s prior crimes was already taken
into consideration by the criminal history guidelines, which
accorded him the lowest criminal history category of I — as if
he had no criminal record at all. In In re Sealed Case, 292
F.3d 913, 916–17 (D.C. Cir. 2002), this circuit held that a
downward departure may not be based on a defendant’s
criminal history where the defendant is already in category I.
See also U.S.S.G. § 4A1.3 (‘‘The lower limit of the range for
Criminal History Category I is set for a first offender with
the lowest risk of recidivism. Therefore, a departure below
the lower limit of the guideline range for Criminal History
Category I on the basis of the adequacy of criminal history
cannot be appropriate.’’). Moreover, the offense guideline
under which Riley was sentenced likewise took account of the
fact that his predicate offense was non-violent: as a conse-
quence, his offense level was 14, see U.S.S.G. § 2K2.1(a)(6),
rather than at least 6 levels higher, see id. § 2K2.1(a)(1)–(4).
The other cited characteristics — Riley’s employment rec-
ord, civic service, and family responsibilities — are also
insufficient. The sentencing guidelines categorize these as
‘‘discouraged factors,’’ which are ‘‘ ‘not ordinarily relevant to
the determination of whether a sentence should be outside
the applicable guideline range’ ’’ and may not form the basis
of a departure unless they are present to ‘‘an exceptional
degree.’’ Koon, 518 U.S. at 95–96 (quoting U.S.S.G. ch. 5, pt.
H, intro. cmt.).13 It is ‘‘the defendant [who] bears the burden
13 See U.S.S.G. § 5H1.5 (employment record); id. § 5H1.6 (family
ties and responsibilities); id. § 5H1.11 (civic, charitable, or public
service); see also United States v. Dyce, 91 F.3d 1462, 1467 (D.C.
Cir. 1996) (holding that departures for family circumstances are
permissible only when the circumstances are ‘‘extraordinary’’); id.
at 1470 (holding that, ‘‘[l]ike family responsibilities, a defendant’s
education, employment record, and various good works are not
ordinarily relevant in determining departures,’’ and may be the
17
of proving by a preponderance of the evidence that he is
eligible for a downward departure,’’ United States. v. Good-
win, 317 F.3d 293, 297 (D.C. Cir. 2003), and Riley has given
us no reason to think that his circumstances in these respects
are exceptional in any way. Finally, Riley’s claim that even if
these factors do not individually warrant a departure, they do
so in combination, faces an even higher — and here insur-
mountable — barrier: A departure based on such an alleged
combination is permissible only in ‘‘an extraordinary’’ and
‘‘extremely rare’’ case. U.S.S.G. § 5K2.0, cmt.; see Dyce, 91
F.3d at 1468. Riley’s is not such a case.
B
Riley also maintains that U.S.S.G. § 2K2.1(b)(2) provides
an alternative ground for affirming the sentence he received,
based not on a departure but rather on a downward adjust-
ment of his base offense level. That subsection of the guide-
line applicable to § 922(g) convictions instructs courts to
reduce the base offense level if the defendant ‘‘possessed all
ammunition and firearms solely for lawful sporting purposes
or collection.’’ U.S.S.G. § 2K2.1(b)(2) (emphasis added). Ri-
ley claims that proper application of that provision would
have yielded a base offense level of 6 and a guideline range of
0–6 months, which would have rendered him eligible for the
probation to which he was sentenced. See id. § 5B1.1.
This claim is new on appeal and fails on the merits. Riley
did not contend below that he had possessed the weapon
solely for sporting purposes; his sentencing memorandum
said only that he had gone to a shooting range the night
before his arrest and that he had proceeded from there to his
job in Washington. Moreover, the commentary to § 2K2.1
instructs courts to ‘‘determin[e] by the surrounding circum-
stances’’ whether a weapon was possessed solely for lawful
sporting purposes or collection. Those circumstances include
the ‘‘location and circumstances of possession,’’ and the ‘‘na-
basis for one only if the defendant is likely to make a contribution to
society of ‘‘an extraordinary degree’’) (internal quotation marks
omitted).
18
ture of the defendant’s criminal history (e.g., prior convictions
for offenses involving firearms).’’ Id. § 2K2.1 n.10.
In Riley’s case, the surrounding circumstances cut against
his claim. He did not possess the weapon at a sporting
location, but rather across a state line hours after its purport-
ed sporting use. See United States v. Morrison, 983 F.2d
730, 732 (6th Cir. 1993) (denying departure in part because
the timing of sunset indicated that the defendant ‘‘was not
hunting immediately prior to his arrest’’). The weapon was
fully loaded. See United States v. Dudley, 62 F.3d 1275, 1277
(10th Cir. 1995) (concluding that the ‘‘fact that the guns were
loaded cuts against the contention that they were solely for
sporting or collection purposes, rather than for personal
protection’’). And Riley’s criminal history included prior
convictions for firearms offenses. See supra Part I & n.1. In
short, Riley simply cannot squeeze his circumstances into the
narrow confines of § 2K2.1(b)(2).
VI
Based on the above considerations, we conclude that the
downward sentencing departure granted Riley by the district
court was unwarranted. Our dissenting colleague does not
disagree, but ‘‘would remand the case to the district court for
detailed factual findings and an explication of reasons for
departing from the Sentencing Guidelines.’’ Dissent at 8.
We decline to do so. Having given Riley every benefit of the
doubt and having assumed the truth of every factual assertion
he has offered here or in the district court, we have concluded
that there are no facts the district court could find and no
reasons it could explicate that — consistent with Riley’s
version of events — would justify a downward departure.
The problem in this case is not just insufficient factfinding by
the district judge, but the failure of the facts — as asserted
by Riley himself — to warrant a departure. Were we to
remand here, we would have to remand in every case in which
the proffered facts fail to justify a departure under any of a
defendant’s theories, a result the Congress that passed the
PROTECT Act could hardly have contemplated.
19
We, of course, agree that it is our responsibility to ‘‘accept
the findings of fact of the district court unless they are clearly
erroneous.’’ 18 U.S.C. § 3742(e). But in resolving this case
on the assumption that the facts are as the defendant alleges,
we do not ‘‘make [our] own findings of fact’’ or ‘‘speculate’’ or
‘‘surmise’’ in any way that disadvantages the defendant, Dis-
sent at 5 — just as we do not find facts when we assume the
truth of a plaintiff’s allegations in ruling on a motion to
dismiss under Federal Rule of Civil Procedure 12(b)(6). In a
case in which the defendant has neither offered nor alleged
evidence from which a factfinding in his favor could reason-
ably be derived, there is no reason to remand for a factfinding
that if made could not be legally sustained. Cf. Al–Fayed v.
CIA, 254 F.3d 300, 309 n.10 (D.C. Cir. 2001) (observing that a
court ‘‘need not remand to permit the district court to exer-
cise its discretion to depart if its decision to do so on remand
would constitute an abuse of discretion’’ (quoting United
States v. Fenner, 147 F.3d 360, 363 (4th Cir. 1998))).
We also part company with our dissenting colleague in her
repeated reliance on passages from Koon v. United States
that have been legislatively superceded by the PROTECT
Act. That statute was plainly intended to require courts of
appeals to review ‘‘de novo the district court’s application of
the guidelines to the facts’’ in the context of sentencing
departures, 18 U.S.C. § 3742(e); see id. § 3742(e)(3)(B), rath-
er than to give the district court ‘‘due deference’’ as required
by Koon, see 518 U.S. at 96–99 (rejecting de novo standard of
review in favor of due deference/abuse-of-discretion).
Finally, the cases cited by the dissent do not support the
proposition that our sister circuits, ‘‘faced with the task of
conducting de novo review of sentencing departures after
enactment of the PROTECT Act, [have] concluded that the
proper remedy for insufficient fact-finding by the district
court is a remand for additional fact-finding.’’ Dissent at 8.
Two of the cited cases are simply inapposite.14 And the third,
14In United States v. Bostic, the Sixth Circuit expressly stated
that it was not applying the PROTECT Act because the govern-
ment had failed to assert it. 371 F.3d 865, 873 n.7 (6th Cir. 2004).
The remand in United States v. Lynch had nothing to do with
20
while instructive, teaches a different lesson. In United States
v. Huerta, the government and defendant presented conflict-
ing versions of the facts, and the court of appeals remanded
because the district court had failed to determine which
version was correct. 371 F.3d 88, 95–96 (2d Cir. 2004). If
that were true in this case, a remand might well be warrant-
ed. Here, however, we do not have conflicting versions of the
facts; we have only Riley’s. And even accepting Riley’s
version, the facts are insufficient to justify a departure from
the applicable guidelines range. Under such circumstances, a
remand would be futile.
VII
For the foregoing reasons, we ‘‘set aside the sentence and
remand for further sentencing proceedings’’ consistent with
this opinion. 18 U.S.C. § 3742(f)(2)(B).
additional factfinding. In that case, the Fifth Circuit held that the
district court had improperly ordered a consecutive sentence, and
remanded the case to permit the court to state (for the first time)
whether it had intended that sentence to constitute an upward
departure from the guidelines. 2004 WL 1567852, at *3 (5th Cir.
2004).
1
ROGERS, Circuit Judge, concurring in part and dissenting in
part: Because imposing a criminal sentence implicates ‘‘the
most elemental of liberty interests — the interest in being
free from physical detention by one’s own government,’’
Hamdi v. Rumsfeld, 124 S. Ct. 2633, slip op. at 22 (2004)
(citing Foucha v. Louisiana, 504 U.S. 71, 80 (1979)), it is
imperative that courts reach sentencing decisions properly.
Cf. United States v. Saro, 24 F.3d 283, 287–88 (D.C. Cir.
1994). The Prosecutorial Remedies and Other Tools to End
the Exploitation of Children Today Act of 2003 (‘‘the PRO-
TECT Act’’), Pub. L. 108–21, 117 Stat. 650 (April 30, 2003)
(codified as amended at 18 U.S.C. § 3553ff), establishes a
new, more demanding appellate standard of review that de-
pends on detailed findings by the district court, by which the
appellate court is bound, absent clear error. Because the
court concludes that the record of appellee’s sentencing con-
tains unclear reasoning by the district court and lacks de-
tailed factual findings on relevant considerations for depart-
ing from the United States Sentencing Guidelines, see, e.g.,
U.S.S.G. §§ 5K2.0, 5K2.11, the court should obtain detailed
findings from the district court before conducting its de novo
review of the district court’s departure from the Guidelines.
For an appellate court to act on the basis of an insufficient
district court record, and in the process to make findings of
fact not touched upon by the court below, muddles the
distinct and separate roles of the district and appellate courts
under the PROTECT Act. Accordingly, I would remand the
case to the district court, which has ‘‘an institutional benefit
over appellate courts’’ that do not see nearly as many Guide-
lines cases, Koon v. United States, 518 U.S. 81, 98 (1996), so
that the court may make detailed findings in support of its
decision to depart from the Sentencing Guidelines. See 18
U.S.C. §§ 3553(c), 3742(e).
Under the PROTECT Act, the appellate court must accept
the district court’s findings of fact unless they are clearly
erroneous, but reviews de novo for limited purposes the
district court’s determination to depart from the Sentencing
2
Guidelines. See id. § 3742(e). The appellate court is still
required to give ‘‘due deference to the district court’s applica-
tion of the guidelines to the facts.’’ Id. § 3742(e). See In re
Sealed Case, 350 F.3d 113, 116 (D.C. Cir. 2003). However, if
a sentence is outside the applicable guideline range, and is
either not explained by a written statement of reasons, or
based on an impermissible factor, de novo review is warrant-
ed. See id. § 3742(e)(3)(A), (B). But in conducting de novo
review, the appellate court is limited by the PROTECT Act to
determining, as relevant here, whether the departure (1)
‘‘does not advance the objectives’’ of 18 U.S.C. § 3553(a)(2),
namely, reflecting the seriousness of the offense, promoting
respect for the law, providing just punishment and adequate
deterrence, protecting the public, and providing the defen-
dant with effective correctional treatment; (2) is ‘‘not author-
ized’’ under id. § 3553(b), which directs that sentences be
imposed within the guidelines range ‘‘unless the court finds
that there exists an aggravating or mitigating circumstance of
a kind, or to a degree, not adequately taken into consideration
by the Sentencing Commission’’; or (3) is ‘‘not justified by the
facts of the case.’’ Id. § 3742(e)(3)(B)(i)-(iii); see also id.
§ 3742(f).
The district court made the following findings of fact.
After accepting appellee’s plea to the superceding indictment,
the court released appellee on his personal recognizance
pending sentencing, finding that appellee ‘‘is gain[ful]ly em-
ployed. He has a stable residence. He has been in complete
compliance since January of this year with all the conditions
of pretrial supervision. I see no basis on which to lock him
up at this point.’’ Transcript of Plea Proceedings, Apr. 24,
2003, at 17. At sentencing, in considering the defense motion
for a downward departure of four levels under U.S.S.G.
§§ 5K2.0 and 5K2.11, the district court stated that the issue
was ‘‘the reason for which [the appellee] possessed a weapon.’’
Sentencing Transcript, Apr. 29, 2003, at 5. Noting that
appellee’s felony conviction was 13 years old, the court chal-
lenged the prosecutor’s statement that ‘‘the government is
confident that [appellee] was aware that he was not to posses
a firearm under any circumstances.’’ Id. In response to the
3
prosecutor’s final statement that a departure would not be
justified, the court stated, ‘‘[Appellee] is 42 years old. He has
been gainfully employed. * * * He hasn’t done anything
wrong since 1989. He supports his children or tries to
support his children. He seems to me to be an ideal candi-
date for probation, and I see no point at all in sending him to
prison at this point. I am going to grant the Motion for a
Departure, and you can put me on Mr. Ashcroft’s list.’’ Id. at
6. (Under the PROTECT Act, the Attorney General must
report to the House and Senate Judiciary Committees within
15 days of any downward departure by a district court from
the Sentencing Guidelines. See 18 U.S.C. § 3553 note
(2003)). After hearing defense counsel’s view that probation
was warranted because appellee was ‘‘a very atypical [d]efen-
dant,’’ id. at 7, the district court, upon hearing from appellee
personally, sentenced him to three years probation.
In the Judgment, the district court stated that it was
departing from the Sentencing Guidelines under U.S.S.G.
§§ 5K2.0 and 5K2.11 for the reasons stated in appellee’s
motion for downward departure, and that it was adopting the
factual findings and Guideline application in the presentence
report. Appellee’s departure motion briefly described his
current employment and the circumstances of his predicate
felony conviction and present arrest in support of his claim
that his ‘‘conduct [wa]s vastly different than the overwhelm-
ing majority of cases prosecuted under 18 U.S.C. § 922(g).’’
The motion argued that appellee’s conduct did not threaten
the harm sought to be prevented by § 922(g), but was more
akin to comparable cases where courts had granted depar-
tures, and differed significantly from typical conduct covered
by the heartland of cases encompassed by the Sentencing
Guidelines. Other than reciting appellee’s employment and
arrest circumstances, however, the motion was cursory and
devoid of substantive legal arguments, simply citing the hold-
ings of various cases. While the presentence report provided
additional factual information about appellee, the district
court did not articulate which and to what extent any of these
other facts influenced its decision to depart.
4
Doubtless, district court findings, whether oral or written,
have often been far from extensive in view of the limited
nature of appellate review that existed prior to the PRO-
TECT Act. See Koon, 518 U.S. at 91 (1996); United States v.
Bridges, 175 F.3d 1062, 1065 (D.C. Cir. 1999). While the
PROTECT Act does not substantively change the district
court’s ability to depart from the Sentencing Guidelines in
most cases, it does make a procedural change by requiring
the district court to set out in writing its reasons for depar-
ture, as well as expanding the scope of appellate review of
such departures. See United States v. VanLeer, 270 F. Supp.
2d 1318, 1324 (D. Utah 2003). Under § 3553(c)(2), the dis-
trict court is required to state ‘‘with specificity’’ his or her
‘‘reasons [for departing] TTT in the written order of judgment
and commitment.’’ Previously the statute only required the
district court to state ‘‘in open court’’ ‘‘the specific reason’’ for
a departure. See 18 U.S.C. § 3553(c)(2004) (amending 18
U.S.C. § 3553(c)(2000)). See Op. at 8. The House sponsor
and other supporters of the amendment, calling for de novo
appellate review, were of the opinion that district courts were
too often departing from the Sentencing Guidelines, and that
the abuse of discretion standard for appellate review under
Koon was inadequate to the task of ensuring that district
courts followed the Guidelines. See CONG. REC. H2422 (daily
ed. Mar. 27, 2003) (statement of Rep. Feeney); id. at H2423
(statement of Rep. Sensenbrenner). By requiring the district
court to provide written reasons, Congress increased the
pressure on district courts to make detailed findings of fact to
support their departure decisions. Indeed, even if the statu-
tory language in § 3553(c) had remained unchanged, the
more demanding de novo standard for appellate review itself
places a greater premium on fact-finding by the district court.
I concur in holding that there is no retroactivity problem
under the reasoning of Landgraf v. USI Film Products, 511
U.S. 244, 265 (1994). See Op. at 6–7. The PROTECT Act
neither impairs appellee’s rights to a departure under the
Sentencing Guidelines nor imposes new duties on appellee to
obtain a departure. See Ibrahim v. District of Columbia, 208
F.3d 1032, 1035–36 (D.C. Cir. 2000). I also concur in holding
5
that applying the PROTECT Act to appellee does not violate
the ex post facto clause of the Constitution, see Op. at 7, U.S.
CONST. art. I, § 10, cl. 1. The PROTECT Act does not
increase the punishment for violations of 18 U.S.C. § 922(g).
See Cal. Dep’t of Corr. v. Morales, 514 U.S. 499, 504 (1995)
(citing Collins v. Youngblood, 497 U.S. 37, 43 (1990)). Cf.
United States v. Shorty, 159 F.3d 312, 315 (7th Cir. 1998).
However, the court brushes aside too quickly the concerns
appellee raises about the practical impact of the PROTECT
Act. See Op. at 8–9. These concerns are significant for
purposes of enabling the appellate court to properly perform
its role under the PROTECT Act. Because the PROTECT
Act calls for written and more detailed fact-finding by the
district court and makes the district court’s findings that are
not clearly erroneous binding on the appellate court, it neces-
sarily follows that in departing from the Sentencing Guide-
lines, the district court’s factual findings must be more rigor-
ous. See, e.g., VanLeer, 270 F. Supp. 2d at 1324–25.
Without detailed factual findings by the district court to
support a departure from the Sentencing Guidelines, the
appellate court, even where, as here, it accepts appellee’s
version of the facts, see Op. at 8, is left to speculate and
surmise. For instance, the court states that the district court
‘‘made no mention of the circumstances of [appellee’s] arrest
or of his representations regarding the shooting range.’’ Id.
at 5. The court then proceeds to make its own findings of
fact, speculating that appellee evidenced no intention to per-
manently relinquish the firearm. See id. at 12. The court
further acknowledges that the district court’s reasoning in
granting the departure was unclear. In this regard, the court
observes that the district court’s findings left uncertain
whether the district court found that departure under
U.S.S.G. § 5K2.0 was warranted based on a ‘‘combination of
factors,’’ which together might have taken the case outside
the heartland of offenses covered by the Guideline. Id. at 15.
The court implicitly admits, in making its own findings, that
the district court failed to elaborate on key considerations
that are significant for purposes of justifying a departure in
the instant case, such as an explanation of precisely why the
6
district court concluded that appellee’s case was ‘‘exception-
al.’’ Id. at 14, 17. Additionally, as the court describes, the
district court only touched very generally on some of its
reasons for finding departure warranted. See id. at 5.
Notwithstanding the absence of detailed factual findings by
the district court, the court draws its own inferences and
conclusions, stating, on the basis of an admittedly inadequate
record, that appellee’s circumstances were clearly not ‘‘excep-
tional.’’ Id. at 14, 16–17. This conclusion reflects the quin-
tessential type of fact-finding that a district court is in a
better position to undertake than an appellate court. A
determination of the reason why appellee possessed the fire-
arm, see, e.g., United States v. Shell, 972 F.2d 548, 552 (5th
Cir. 1992), as well as a determination of whether facts are
present to ‘‘an exceptional degree,’’ Koon, 518 U.S. at 95–96
(quoting U.S.S.G. ch. 5, pt. H, intro. cmt.), are best evaluated
in the first instance by the district courts. See United States
v. Rhodes, 145 F.3d 1375, 1383–84 (D.C. Cir. 1998). As the
Supreme Court observed in Koon, 518 U.S. at 98, albeit in
support of an abuse of discretion standard for appellate
review, district courts have ‘‘an institutional advantage over
appellate courts TTT, especially as they see so many more
Guidelines cases than appellate courts do.’’ Koon, 518 U.S. at
98. With enactment of the PROTECT Act, the district
court’s institutional advantage remains unchanged; appellate
courts see far fewer Sentencing Guideline cases than district
courts and, moreover, the district court has the opportunity to
question the defendant personally. See FED. R. CRIM. P.
32(c). Consequently, a district judge’s determination of a
defendant’s purpose or that a case is truly ‘‘exceptional’’
based on specific findings of fact will generally be more
credible than when an appellate court makes the same deter-
mination based on a sparse factual record from the district
court.
In making factual findings, see Op. at 12, 14, 16–17, and
drawing inferences to support its conclusions, then, the court
distorts the appellate court’s role beyond that contemplated
by the PROTECT Act. Cf. 18 U.S.C. § 3742(f). See also
7
Williams v. United States, 503 U.S. 193, 205 (1992). Simply
assuming the defendants’ proffer of the facts to be true, see
Op. at 8, does not suffice, for this ignores the district court’s
‘‘special competence — about the ‘ordinariness’ or ‘unusual-
ness’ of a particular case.’’ Koon, 518 U.S. at 98 (quoting
United States v. Rivera, 994 F.2d 942, 951 (1st Cir. 1993)).
Findings of fact by a district court reflect experienced judg-
ment in Sentencing Guidelines cases to the factual proffers
and arguments of the parties in a particular case. See FED.
R. CRIM. P. 32(c). The colloquy between the prosecutor and
the district court that occurred in this case is indicative of
such judgments. Further, the presentence report contains
detailed facts from which the district court may draw in
determining whether or not to depart from the Sentencing
Guidelines. See id. By contrast, a defendant, as here, may
fail to identify all the relevant circumstances or fail to state
them in a manner that is likely to persuade an appellate
court. See, e.g., Op. at 4, 8. Appellee’s departure motion
appears to assume that the age and nature of his predicate
felony conviction, his current employment, and his innocent
purposes in possessing the firearm sufficed to support a
departure. Whether true or not, the deficiencies in the
district court’s factual findings pointed out by the court are of
a type that should be fleshed out at a sentencing hearing,
where in addition to obtaining assistance from the parties’
written pleadings, the district court can independently ques-
tion the parties as well.
Simply put, in the PROTECT Act, Congress not only
preserved the significant fact-finding role of the district court
sentencing, it insisted upon it. Congress’ focus was not on
transforming the fact-finding responsibilities long vested in
the district courts, but rather on ensuring that the courts
follow the Sentencing Guidelines. See 149 CONG. REC. H2423
(daily ed. Mar. 27, 2003) (statement of Rep. Feeney). To that
end, Congress requires detailed fact-finding by the district
court and written reasons in the event of departure from the
Guidelines. See 18 U.S.C. § 3553(c). While expanding appel-
late review of sentencing departures in an effort to ‘‘ad-
dress[ ] long-standing and increasing problems of downward
8
departures from the Federal sentencing guidelines,’’ 149
CONG. REC. H2422 (daily ed. Mar. 27, 2003) (statement of Rep.
Feeney), Congress made no change to the clearly erroneous
standard of review of district court findings of fact. See 18
U.S.C. § 3742(e)(4). Importantly, the roles of the district
court and the appellate court remain separate and defined
under the PROTECT Act. Heretofore, the court has recog-
nized the distinct perspective of the district court, see Rhodes,
145 F.3d at 1384, and has not been loath to remand in
sentencing matters in recognition that a district court may
draw different inferences than an appellate court looking only
at a paper record. See United States v. Lam, 924 F.2d 298,
307 (D.C. Cir. 1991). Our sister circuit, faced with the task of
conducting de novo review of sentencing departures after
enactment of the PROTECT Act, has concluded that the
proper remedy for insufficient fact-finding by the district
court is a remand for additional fact-finding. See United
States v. Huerta, 371 F.3d 88, 95 (2d Cir. 2004). As the
Second Circuit observed, its review of the district court’s
sentencing determination was hampered by the limited nature
of the district court’s factual findings. See id. To date, other
circuits have remanded for the district court’s initial consider-
ation of relevant considerations under the PROTECT Act.
See United States v. Bostic, 371 F.3d 865, 877 n.10 (6th Cir.
2004); United States v. Lynch, 2004 WL 1567852 (5th Cir.
2004).
For these reasons, I would remand the case to the district
court for detailed factual findings and an explication of rea-
sons for departing from the Sentencing Guidelines, which
must be stated ‘‘with specificity’’ and in writing, as required
by the PROTECT Act. See 18 U.S.C. § 3553(c). According-
ly, to this extent, I respectfully dissent.