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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 28, 2004 Decided October 26, 2004
No. 03-3139
UNITED STATES OF AMERICA,
APPELLANT
v.
DARIN M. TUCKER,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 02cr00311–01)
Lisa H. Schertler, Assistant U.S. Attorney, argued the
cause for appellant. With her on the briefs were Roscoe C.
Howard, Jr., U.S. Attorney at the time the brief was filed,
Kenneth L. Wainstein, U.S. Attorney, and John R. Fisher
and Florence Y. Pan, Assistant U.S. Attorneys. Thomas J.
Tourish, Jr., Assistant U.S. Attorney, entered an appearance.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
Lisa B. Wright, Assistant Federal Public Defender, argued
the cause for appellee. With her on the brief was A. J.
Kramer, Federal Public Defender. Neil H. Jaffee and
Shawn Moore, Assistant Federal Public Defenders, entered
appearances.
Before: GINSBURG, Chief Judge, and EDWARDS and ROBERTS,
Circuit Judges.
Opinion for the Court filed by Circuit Judge ROBERTS.
ROBERTS, Circuit Judge: The district judge in this case
declined to sentence the defendant according to the Sentenc-
ing Guidelines because he disagreed with the Guidelines. As
the judge put it, he was ‘‘not going to be the instrument of
injustice in this case.’’ Presentence Hearing Tr. at 4 (July 18,
2003). The Supreme Court has explained that ‘‘ ‘[s]imple
justice’ is achieved when a complex body of law developed
over a period of years is evenhandedly applied.’’ Federated
Dept. Stores, Inc. v. Moitie, 452 U.S. 394, 401 (1981). The
district judge’s apparent election to sentence according to his
own lights, rather than pursuant to the Sentencing Guidelines
binding on him and on us, compels us to vacate and remand
so that we may be certain Tucker is sentenced under the
Guidelines and in accordance with the rule of law we are all
duty-bound to uphold.
I.
On June 20, 2002, a police officer on a routine patrol
approached Darin M. Tucker and asked him ‘‘What’s up?’’ In
response, Tucker charged the officer, causing him to fall
backward. The officer pursued Tucker across the street,
caught him, and placed him under arrest for assaulting a
police officer. In the search incident to arrest, the officer
discovered two clear plastic bags containing 45.3 grams of
crack cocaine. On March 20, 2003, pursuant to an agreement
with the government, Tucker pled guilty to possession with
intent to distribute five grams or more of cocaine base in
violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B)(iii).
3
The pre-departure sentencing range for Tucker under the
United States Sentencing Guidelines is not in dispute. Given
the level of the offense, Tucker’s criminal history category,
and a three-offense-level reduction for acceptance of responsi-
bility, the appropriate pre-departure sentencing range was
70–87 months’ imprisonment. United States Br. at 9 (citing
Presentence Investigation Report at 15). The government
also indicated that it would not oppose the application of the
so-called ‘‘safety valve’’ provisions of the Sentencing Guide-
lines. See Presentence Hearing Tr. at 4. See generally
U.S.S.G. § 2D1.1(b)(6) and § 5C1.2 (allowing reduction in
offense level below the mandatory minimum sentence for
offenders of 21 U.S.C. § 841 in the absence of certain aggra-
vating characteristics). With application of the safety valve,
Tucker was eligible for an additional two-point reduction in
offense level, lowering the Guidelines range to 57–71 months’
imprisonment. See Sentencing Hearing Tr. at 11 (Sept. 30,
2003); Tucker Br. at 3–4.
For the thirteen months prior to his sentencing, Tucker
was released under the supervision of a pretrial monitoring
program, which required that he undergo regular drug test-
ing, abide by strict curfew provisions, and maintain contact
with the supervising agency. During that time, he violated
curfew eleven times and failed two drug tests. See Sentenc-
ing Report at 1–3 (Sept. 25, 2003). Tucker also, however,
secured a full-time job at a warehouse — a job that allowed
him to contribute to the support of his children. His employ-
er took the time to write an ‘‘extraordinarily complimentary
letter’’ praising Tucker as an employee and expressing his
wish that Tucker remain able to work for him. Presentence
Hearing Tr. at 2–3. Tucker also began attending computer
repair courses in the hope of starting his own business. This
record was sufficient for the pretrial services officer to recom-
mend that Tucker be transferred from intensive supervision
to work release pending his sentencing. Sentencing Report
at 3.
At the July 18, 2003 presentence hearing, the district court
acknowledged the drug testing failures and curfew violations,
but noted Tucker’s progress and observed that he had ‘‘com-
4
ported himself as a model citizen since his arrest.’’ Presen-
tence Hearing Tr. at 2. The sentencing judge expressed
frustration that the Sentencing Guidelines left him ‘‘no choice
but to send [Tucker] to prison for nearly five years,’’ an
outcome that he viewed as ‘‘counterproductive’’ for Tucker’s
rehabilitation, the community, and the criminal justice sys-
tem. Id. at 3. Accordingly, the judge let the parties know
that if Tucker were to maintain a clean record until his
sentencing the following month, it was his ‘‘intention to grant
a downward departure in his offense level sufficient TTT to
place him on probation.’’ Id. He advised the prosecutor ‘‘I
think you better start preparing your appeal,’’ for even
though he was ‘‘fully cognizant of what the Court of Appeals
in its wisdom may do’’ he was ‘‘not going to be the instrument
of the injustice in this case.’’ Id. at 4.
True to his word, on September 30, 2003, after acknowl-
edging again that the ‘‘absolute minimum’’ sentence he could
issue Tucker under the Guidelines was 57 months’ imprison-
ment, see Sentencing Hearing Tr. at 3, the judge departed
downward to sentence Tucker to five years’ probation and a
$100 special assessment fine. Although judges departing
from the range prescribed by the Guidelines are required to
explain their reasons for doing so ‘‘with specificity in the
written order of judgment and commitment,’’ 18 U.S.C.
§ 3553(c), the sentencing order simply referred to ‘‘U.S.S.G.
§ 5K2 and reasons set forth on the record at sentencing.’’
Judgment and Commitment Order at 6.
Section 5K2 covers a wide range of grounds for departure,
so we cannot say with certainty what the judge intended by
referencing this broad section of the Guidelines. The tran-
script of the hearing, while not providing an explicit delinea-
tion of reasons for the downward departure, suggests five
possible ones: (1) the fact that Tucker had not committed a
criminal offense in the prior nine years; (2) the court’s belief
that the sentence required by the Guidelines was unjust; (3)
Tucker’s post-conviction rehabilitation; (4) Tucker’s employ-
ment record; and (5) Tucker’s family ties and responsibilities.
The government appeals the downward departure.
5
II.
Our review of district court sentencing decisions is gov-
erned by 18 U.S.C. § 3742(e). We ‘‘accept the findings of fact
of the district court unless they are clearly erroneous,’’ id.,
and review de novo pure questions of law — such as whether
a factor is a permissible basis for departure under any
circumstances. See Koon v. United States, 518 U.S. 81, 100
(1996). Until recently, we would review a district court’s
decision to depart under the Guidelines only for abuse of
discretion. In 2003, however, Congress amended § 3742(e)
by enacting § 401 of the Prosecutorial Remedies and Other
Tools to end the Exploitation of Children Today Act of 2003
(PROTECT Act), Pub. L. No. 108-21, 117 Stat. 650, 667–76
(Apr. 30, 2003). Pursuant to the PROTECT Act amendment,
we review the district court’s decision to depart from an
applicable Guidelines range de novo. 18 U.S.C. § 3742(e);
United States v. Riley, 376 F.3d 1160, 1164 (D.C. Cir. 2004).
Although the conduct for which Tucker was convicted took
place some ten months before the PROTECT Act became
law, we apply this judicial review provision ‘‘with immediate
effect, and without constitutional disability, to appellate pro-
ceedings after April 30, 2003.’’ Riley, 376 F.3d at 1165.
III.
To the extent the district court based the departure on its
belief that the sentence was unjust, it relied on a factor that is
clearly impermissible under the Guidelines. See United
States v. Webb, 134 F.3d 403, 407 (D.C. Cir. 1998) (‘‘The
district court’s disagreement with the policies embedded in
the Sentencing Guidelines does not authorize it to depart.’’).
The same holds for the remoteness of Tucker’s criminal
history. It is true that Tucker had not been convicted of a
criminal offense in nine years. Nevertheless, because Tucker
was assigned to Criminal History Category I — the lowest
possible level — the Guidelines have already accounted for
that mitigating fact. See U.S.S.G. § 4A1.3 (policy statement)
(‘‘a departure below the lower limit of the guideline range for
Criminal History Category I on the basis of adequacy of
6
criminal history cannot be appropriate’’). The departure is
thus invalid to the extent the district court based it on this
factor. See In re Sealed Case, 292 F.3d 913, 916–17 (D.C.
Cir. 2002).
The remaining factors the district court seemed to consider
in electing to depart are legally permissible — in rare circum-
stances. The Sentencing Guidelines include post-conviction
rehabilitation as a factor qualifying a defendant for a down-
ward departure for acceptance of responsibility. See U.S.S.G.
§ 3E1.1, cmt. n.1(g) (considerations for an acceptance-of-
responsibility departure include ‘‘post-offense rehabilitation
efforts (e.g., counseling or drug treatment)’’ ). Tucker re-
ceived the maximum decrease in offense level authorized by
§ 3E1.1. Although in most cases this reduction would be the
maximum allowable, this circuit has left open the possibility
for a further reduction on the ‘‘rare occasion’’ that the reha-
bilitation ‘‘is so extraordinary as to suggest its presence to a
degree not adequately taken into consideration’’ by § 3E1.1.
United States v. Harrington, 947 F.2d 956, 962 (D.C. Cir.
1991) (quoting United States v. Sklar, 920 F.2d 107, 116 (1st
Cir. 1990)) (internal quotation marks omitted).
Similarly, departures based on employment history or fami-
ly responsibilities are rare, but permitted. Both are discour-
aged factors for downward departures. See U.S.S.G. § 5H1.5
(policy statement) (‘‘Employment record is not ordinarily
relevant in determining whether a sentence should be outside
the applicable guideline range.’’); id. § 5H1.6 (policy state-
ment) (same, with respect to family ties and responsibilities).
As discouraged factors, neither may be a basis for a depar-
ture unless it is present ‘‘to an exceptional degree.’’ Koon,
518 U.S. at 95–96. Accord Riley, 376 F.3d at 1170–71.
These are the legal standards for the permitted factors at
issue, but we are unable to discern whether and how the
district court applied this body of law to the case at hand.
This is in large part because the district court neglected to
give reasons for its departure ‘‘with specificity in the written
order of judgment and commitment’’ as required by 18 U.S.C.
§ 3553(c). Although the district court noted in its sentencing
7
order that its departure was granted pursuant to ‘‘U.S.S.G.
§ 5K2 and reasons set forth on the record at sentencing,’’ this
explanation is insufficient. Prior to the PROTECT Act, the
sentencing judge only had to state reasons for departure in
open court. See 18 U.S.C. § 3553(c) (2000). The Act, howev-
er, amended § 3553(c) to add the requirement that the court
explain reasons for departing in writing. See PROTECT Act,
§ 401(c), 117 Stat. at 669–70. Allowing the district court to
satisfy this new requirement merely by referring to the
sentencing hearing would render the 2003 amendment super-
fluous, and the district court’s additional, vague reference to
§ 5K2 adds nothing.
Given this failure to comply with § 3553(c), the district
court was silent on whether any or all three of the permitted
factors were present to exceptional degrees in Tucker’s case,
and it has given just as little indication as to how it defines
the respective ‘‘heartlands’’ against which an exceptional case
is measured. See U.S.S.G. ch. 1, pt. A, cmt. 4(b) (The
heartland is ‘‘a set of typical cases embodying the conduct
that each guideline describes. When a court finds an atypical
case, one to which a particular guideline linguistically applies
but where conduct significantly differs from the norm, the
court may consider whether a departure is warranted.’’).
Thus, even though we are permitted to review the district
court’s decision to depart de novo, we have been presented
with a record insufficient for that task.
IV.
The government has requested that we vacate Tucker’s
sentence and remand the case to the district court with
instructions to impose a sentence within the applicable Guide-
lines range. United States Br. at 43. It is true that after the
PROTECT Act, the expanded scope of appellate review al-
lows us to determine on the basis of the record whether a
decision to depart from the Guidelines range is justified.
Indeed, when we have been confident that the district court
developed the record sufficiently and attempted to follow the
Guidelines, see Riley, 376 F.3d at 1172–73, or attempted to
8
explain its departure at least in part in terms of the Guide-
lines, see Webb, 134 F.3d at 406, we have done just that.
That is not the case here. Although Tucker has gamely
attempted to rationalize the district court decision in terms of
the Guidelines, the district court was not attempting to apply
the Guidelines in this case; it instead seemed intent on
defying them — and 18 U.S.C. § 3553(c), to boot. De novo
review is still review, and implies there has been some good
faith effort by the district court to apply the Guidelines in the
first place. That has not yet happened here. We decline to
instruct the district court at this time whether a departure
based on permitted factors is appropriate in Tucker’s case.
Instead, we vacate Tucker’s sentence and remand for resen-
tencing consistent with 18 U.S.C. § 3553(c) and the Sentenc-
ing Guidelines. So long as these Guidelines are the law of the
land, we — and the district courts — are obligated to apply
them.