United States Court of Appeals
For the First Circuit
No. 01-1257
UNITED STATES OF AMERICA,
Appellee,
v.
CHARLES DEWIRE,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Mark L. Wolf, U.S. District Judge]
Before
Torruella and Lipez, Circuit Judges,
and Stearns*, District Judge.
Matthew H. Feinberg with whom Matthew A. Kamholtz and
Feinbert & Kamholtz were on brief for appellant.
James F. Lang, Assistant United States Attorney, with whom
James B. Farmer, United States Attorney, was on brief for
appellee.
November 16, 2001
__________________
*Of the District of Massachusetts, sitting by designation.
STEARNS, District Judge. Defendant-appellant Charles
Dewire pled guilty to using a means of interstate commerce to
induce a minor to engage in a sexual act, in violation of 18
U.S.C. § 2422(b). Dewire thereafter moved for a downward
departure on grounds of aberrant behavior. The district court
refused to depart and imposed a sentence of one year and a day,
the minimum authorized by the Sentencing Guidelines. Dewire
appeals, arguing: (1) that the district court's refusal to
depart was based on an erroneous factual finding that he had
downloaded child pornography from the Internet; and (2) that the
district court abused its discretion by denying a continuance to
permit him to gather evidence to show that he had not solicited
the pornographic images that had been mailed to his Internet
account. We hold that the denial of a motion for a departure
based on an alleged mistake of fact does not present an
appealable issue. Accordingly, we lack jurisdiction to hear
this appeal, and we therefore affirm the district court.
I. BACKGROUND
Using America Online ("AOL") Instant Messenger,1 Dewire
engaged in a sexually explicit conversation with an individual
whom he believed to be a twelve year-old girl. Toward the end
1
This AOL service feature allows users to correspond
contemporaneously through e-mail.
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of the conversation, he arranged to meet the girl the following
afternoon at a local restaurant. In reality, the “girl” was an
adult swim team coach, working on the family computer while
visiting the girl’s home. The coach printed the exchange with
Dewire and turned it over to law enforcement authorities.
Dewire was observed the next day entering and leaving the
restaurant. Confronted later at his home by FBI agents, Dewire
confessed.
After his indictment, Dewire filed a motion to dismiss.
With its opposition to the motion, the government submitted a
sealed exhibit containing images of children in graphic sexual
poses, in many cases with adults. These images had been sent as
e-mail attachments on three occasions between 1996 and 1998 to
screen names listed to Dewire’s AOL account. The district court
denied Dewire’s motion to dismiss, and the guilty plea followed.
The Sentencing Guidelines, after an adjustment for acceptance of
responsibility, prescribed a Category I offense level of 13,
with a resulting sentencing range of twelve to eighteen months.
Dewire moved for a downward departure claiming aberrant
behavior. See United States v. Grandmaison, 77 F.3d 555 (1st
Cir. 1996).2 The government did not oppose the departure and
2Section 5K2.20, an amendment to the Sentencing Guidelines
addressing departures based on aberrant behavior, went into
effect on November 1, 2000. Prior to this amendment,
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joined Dewire in recommending that the district court impose a
probationary sentence of five years with conditions.
At the sentencing hearing, Judge Wolf expressed concern
about the instances of child pornography being sent to Dewire’s
e-mail account. He asked, "[w]eren't all of those events or
some of those events possibly a crime?" He further questioned
whether Dewire had been fully candid with his doctors about his
previous involvement with child pornography. He also inquired
whether, given the prior receipt of pornographic images of
children, Dewire’s conduct could fairly be characterized as
aberrant. "I wonder whether this is properly a single act of
aberrant behavior . . . . [I]f he committed, even though he was
not convicted or even charged with, other crimes, I wonder if I
could fairly and properly call this a single act of aberrant
behavior." Commenting further, Judge Wolf said,
I am not persuaded that the crime here was a
single act of aberrant behavior. The
defendant received child pornography from
Grandmaison established the parameters for such departures in
the First Circuit. The parties and the district court agreed
that Grandmaison, and not the new amendment, governed Dewire’s
case because his offense occurred prior to section 5K2.20's
enactment. We accept the soundness of this conclusion.
Dewire also argued that the circumstances of his offense lay
outside the “heartland” of the typical offense of its kind, thus
justifying a departure pursuant to U.S.S.G. § 5K2.0. Dewire
does not pursue this argument on appeal.
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the Internet on at least three occasions
from 1996 to 1998. . . .
He downloaded these materials himself
at least one time. Then he said he didn't
recall, when he was initially interviewed by
the FBI, downloading the others. Knowing
receipt of such materials is a crime but not
part of this offense.
In response to Judge Wolf’s comments, Dewire’s counsel
moved for a continuance for the stated purpose of exploring the
possibility that Dewire had received the images as unsolicited
e-mail attachments. Judge Wolf denied the motion to continue
and imposed a committed sentence of one year and one day, to be
followed by three years of supervised release.
In denying the continuance, Judge Wolf stated that
despite his concerns about the images and Dewire’s apparent lack
of candor, these were not determinative factors in his
sentencing decision. "In my estimation, the only question was
what were the circumstances of the downloading. And I think .
. . while that is relevant, it is not what is at the heart of
this matter." Judge Wolf further stated that were the images
the "sole" or "dominant" factor in his decision, he would have
granted a continuance to "clarify the record." "[I]f this, in
my estimation, were pivotal, decisive, I might have allowed the
request but not in these circumstances." In explaining his
sentence, Judge Wolf stated that,
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perhaps decisively, in this instance, the
nature and seriousness of the offense does
not justify a sentence of probation, even if
this were an isolated aberrant act.
. . . .
. . . And I find in this case it is
appropriate in part to deter others who
might be tempted to use the Internet to pray
[sic] upon children and to recognize the
seriousness of the offense.
Following the hearing, Dewire moved to stay the
sentence pending appeal. At the hearing on the stay motion,
Judge Wolf commented again on his reasons for denying a downward
departure, explaining "while there was a lot of discussion about
the images, they were not material to the outcome of the case."
He repeated his observation that even if Dewire’s conduct had
been aberrant, he did not believe that a departure was warranted
because of the extremely serious nature of the offense. He
added that a continuance "would not have been useful" because he
"would have given the same sentence anyway." He did, however,
grant the stay.
II. DISCUSSION
The issue that we are asked to decide is whether a
district court's refusal to depart is appealable when it is
based on an allegedly erroneous mistake of fact.3 We answer the
3
While the parties have appropriately framed the issue in
terms of a district court’s refusal to depart downward, our
reasoning would apply equally to a district court’s denial of a
motion by the government to depart upward.
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question “no” on the basis of well-established precedent in this
Circuit.
Where a refusal to depart is appealable, a trial
court’s decision is reviewed against an abuse of discretion
standard. See Koon v. United States, 518 U.S. 81, 99 (1996).
As a rule, a district court's denial of a departure is
discretionary and not appealable. See, e.g., United States v.
Pierro, 32 F.3d 611, 619 (1st Cir. 1994); see also United States
v. Romolo, 937 F.2d 20, 22 (1st Cir. 1991). This rule, however,
has three exceptions. The denial of a motion to depart is
appealable where: (1) the refusal to depart involves an
incorrect application of the Sentencing Guidelines, see United
States v. Saldana, 109 F.3d 100, 102 (1st Cir. 1997) (citing 18
U.S.C. § 3742(a)); (2) the refusal to depart otherwise violates
the law, see United States v. Lauzon, 938 F.2d 326, 330 (1st
Cir. 1991); or (3) the district court mistakenly believed that
it lacked the discretion to depart, see United States v. Snyder,
235 F.3d 42, 51 (1st Cir. 2000); see also United States v.
Rizzo, 121 F.3d 794, 798 (1st Cir. 1997). Today, we reaffirm
the rule and its three exceptions.
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To be sure, this Court has never squarely addressed the
issue before us. 4 In Pierro, however, while acknowledging a
degree of confusion regarding the application of the rule and
its exceptions, we were emphatic that in the context of
departures, the touchstone of appealability is a mistake of law.
As we explained,
[i]f the judge sets differential factfinding
and evaluative judgments to one side, and
says, in effect, "this circumstance of which
you speak, even if it exists, does not
constitute a legally sufficient basis for
departure," then the correctness of that
quintessentially legal determination may be
tested on appeal. But if the judge says, in
effect, either that "this circumstance of
which you speak has not been shown to exist
in this case," or, alternatively, that
"while this circumstance of which you speak
might exist and might constitute a legally
cognizable basis for a departure in a
theoretical sense, it does not render this
particular case sufficiently unusual to
warrant departing," then, in either such
event, no appeal lies.
32 F.3d 619.
Since Pierro, we have consistently adhered to the
position that "a refusal to depart is unreviewable unless the
district court based [its decision] on an error of law." United
States v. Santos, 131 F.3d 16, 21 (1st Cir. 1997) (holding that
4
In United States v. O’Connell, 252 F.3d 524, 530 n.2 (1st
Cir. 2001), we acknowledged that the issue was unresolved in
this Circuit, but did not on the facts of that case, think its
consideration either appropriate or necessary.
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we had no authority to review the district court's
determination that a defendant's mental illness neither
diminished his capacity to understand what he was doing nor
contributed to his making of a threat to kill the President);
see also Saldana, 109 F.3d at 102 ("[T]he defendant may not
appeal from a sentence within the guideline range if there was
no legal error and the only claim is that the district court
acted unreasonably in declining to depart"). Indeed, we have
steadfastly refused to review denials of downward departures
where the district court did not misunderstand its legal
authority to depart. See United States v. Teeter, 257 F.3d 14,
30 (1st Cir. 2001) (holding that this Court would not entertain
an appeal of a denial of a departure unless it had a reason to
believe that the trial court did not understand its options);
see also United States v. Patrick, 248 F.3d 11, 28 (1st Cir.
2001) (same); United States v. Shea, 211 F.3d 658, 674 (1st Cir.
2000) (same); United States v. Bello, 194 F.3d 18, 27-28 (1st
Cir. 1999) (same); United States v. Anderson, 139 F.3d 291, 299-
300 (1st Cir. 1998) (holding that the defendant's contentions
that the trial court improperly refused to depart downward on
the bases of, inter alia, coercion, duress, and the defendant's
diminished capacity were not based on legal error and were
therefore unreviewable); United States v. Saccoccia, 58 F.3d
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754, 789-90 (1st Cir. 1995) ("Inasmuch as the district court
correctly understood that it possessed the power to depart . . .
but made a discretionary decision to refrain from exercising
that power, we lack jurisdiction to address appellant's claim").5
Dewire argues that notwithstanding Pierro and a phalanx
of contrary First Circuit precedent, this Court should adopt the
5
Our view is shared by the Fourth, Eleventh, and Seventh
Circuits, which have also declined to hear appeals of fact-based
denials of downward departures. See United States v. Underwood,
970 F.2d 1336, 1338 (4th Cir. 1992) (expressly rejecting the
argument that a factual finding underlying a district court's
refusal to depart is subject to review); United States v.
Patterson, 15 F.3d 169, 171 (11th Cir. 1994) (jurisdiction to
review a denial of a downward departure exists only where the
denial was based on a mistake of law); United States v. Steels,
38 F.3d 350, 352 (7th Cir. 1994) ("[A] determination by the
sentencing judge that the facts of a case do not support a
downward departure is not reviewable on appeal." But see United
States v. Hunte, 196 F.3d 687, 691 (7th Cir. 1999) ("The denial
of a downward departure . . . 'will be affirmed if it results
from a proper application of the sentencing guidelines to facts
not found to be clearly erroneous'") (citation omitted). In
addition, in cases not squarely addressing the issue presented
by this appeal, other Circuits have articulated a rule similar
to the one that we reaffirm today. The Sixth Circuit has held
that a trial court's refusal to depart downward may not be
appealed "as long as (1) the District Court properly computed
the guideline range, (2) the District Court was not unaware of
its discretion to depart downward from the guideline range, and
(3) the District Court did not impose the sentence in violation
of law or as a result of the incorrect application of the
Sentencing Guidelines." United States v. Price, 258 F.3d 539,
547-48 (6th Cir. 2001) (citation and internal quotations
omitted). See also United States v. Mora-Higuera, No. 00-3037,
No. 00-3254, 2001 WL 1204869, at *5 (8th Cir. Oct. 11, 2001);
United States v. Castano-Vasquez, No. 00-3861, 2001 WL 1097820
(page references unavailable) (3d Cir. Sept. 17, 2001).
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reasoning of the Court of Appeals for the District of Columbia
Circuit in United States v. Sammoury, 74 F.3d 1341, 1345 (D.C.
Cir. 1996), where that Court held that it had jurisdiction to
review a district court's denial of a downward departure where
the decision was based on a clearly erroneous mistake of fact.
The reasoning in Sammoury was based on a conflation of 18 U.S.C.
§§ 3742(a)(2) and (e)(2), which authorize review of a sentence
based on an incorrect application of the Sentencing Guidelines,
with section 3742(e)'s mandate that appellate courts are to
"accept the findings of fact of the district court [on
sentencing matters] unless they are clearly erroneous." The
Court explained:
[c]learly erroneous factual determinations
used in determining adjustments . . . may
lead to a sentence imposed as a result of an
incorrect application of the Guidelines,
even though the judge thoroughly understood
the pertinent guideline. . . . The same may
be said of clearly erroneous factual
mistakes used in determining whether to
depart. . . . It is no more an infringement
on the discretion of trial judges to set
aside a sentence when the refusal to depart
rests on a clearly erroneous factual mistake
than to set aside a sentence when the
refusal stems from a misinterpretation of
the Guidelines.
Sammoury, 74 F.3d at 1345; see also United States v. Greenfield,
244 F.3d 158, 160-61 (D.C. Cir. 2001). We believe that Sammoury
misapprehends the difference between a factually correct
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application of the sentencing guidelines, to which a defendant
is entitled, and the award of a discretionary departure, to
which he is not.6 An otherwise proper sentence is not a
misapplication of the Sentencing Guidelines simply because the
district court, as a matter of discretion, refuses to impose a
lesser sentence than the law authorizes, even if its factual
reasons for doing so are mistaken.
The result is, of course, different if a factual
mistake, say a miscalculation of the drug quantity to be
attributed to a defendant, results in an improper Guideline
application. This is the instance, in our view, to which
6 Several other Circuits have appeared at times to have
aligned themselves with the District of Columbia Circuit. The
Ninth Circuit has reviewed a district court's factual findings
for clear error where the denial of a downward departure was in
the court's discretion. United States v. Roe, 976 F.2d 1216,
1217-18 (9th Cir. 1992); but see United States v. Rivera-
Sanchez, 222 F.3d 1057, 1064-65 (9th Cir. 2000) (holding that
the court lacked jurisdiction to consider the merits of the case
where the lower court understood its authority to depart but
made a factual finding that defense counsel had not been
incompetent). The Second Circuit has also indicated a
willingness to review a lower court's factual findings in
denying a downward departure. See United States v. Mickens, 977
F.2d 69, 72 (2d Cir. 1992) ("[O]ur determination of whether
particular factors warrant departure must rest on an assessment
of the facts. . . . We . . . must rely on the findings of the
district court which we will overturn only if 'clearly
erroneous.'"). Similarly, the Fifth Circuit has reviewed for
clear error a district court's factual findings in an appeal of
a denial of a downward departure. See United States v. Ardoin,
19 F.3d 177, 181 (5th Cir. 1994).
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section 3742(e)’s admonition that a district court’s findings of
fact are to be accepted unless “clearly erroneous,” is directed.
See United States v. Cali, 87 F.3d 571, 575 (1st Cir. 1996). It
would also apply in the situation contemplated by
sections 3742(a)(4) and (e)(4), where a district court, in
constructing a sentence for an offense for which there is no
applicable sentencing guideline, resorts to a “plainly
unreasonable” factual analogy.
The precedents to which we adhere in today’s decision
rest on sound policy grounds. Because a trial court’s refusal
to depart is inherently discretionary and fact-based, a rule
contrary to our precedent would invite frivolous appeals,
discourage trial judges from explaining a refusal to depart,7 and
require this court to second-guess, on a cold, and often
factually dense record, the
7As Judge Wolf noted in the hearing on the motion for a stay
of execution of sentence, "it's clear that if I had just said,
denied, and not had a lengthy hearing or given any reasons, this
would not be an appealable issue. But I'm not trying to avert
an appeal. If I made a mistake, I don't want [the defendant] to
be injured by it." As we observed in United States v. Tucker,
892 F.2d 8, 11 (1st Cir. 1989), in discussing the legislative
history of the Sentencing Reform Act, "[t]he required judicial
statement for sentences imposed within the Guidelines is not
envisioned for purpose of appellate review. . . . More
specifically, it was not intended that the statement of reasons
for a sentence within the Guidelines 'become a legal
battleground for challenging the propriety of a particular
sentence.'"
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subjective influence that a questionable fact may have exerted
on a trial judge’s ultimate sentencing decision.8
III. CONCLUSION
In this case, Dewire does not contend that the district
court misapprehended its authority to depart. To the contrary,
the record is clear that the trial court understood it had such
discretion: "[I] assume that I have the discretion provided by
Grandmaison [and] its progeny to allow the motion for downward
departure." Instead, the district court stated that it did not
believe that Dewire satisfied the Grandmaison criteria. The
8
An example may illuminate this point. Suppose a trial
court provides three fact-based reasons for refusing to depart.
A defendant then shows that one of the court’s reasons was based
on a mistaken factual assumption. An appeals court would then
have to consider whether either of the other two stated reasons
would have been sufficient to justify the trial court’s
decision, and moreover, the degree to which one or the other of
the factually correct premises influenced the judge’s thinking.
This exercise would essentially vitiate the broad discretion
granted to trial judges in matters of sentencing.
Alternatively, if the appeals court were to remand such cases to
the trial courts, the interests of judicial economy and finality
would be compromised, without any likely change in the outcome
of the vast majority of cases. This is not to say that we
cannot envision a case where a trial judge’s factual mistake was
so egregious as to require intervention by an appeals court -
say the trial judge mistook the defendant for someone else -
although we are of the view that the issue raised by a mistake
on this order would be one of due process and not sentencing
error. See United States v. McDavid, 41 F.3d 841, 843-44 (2d
Cir. 1994) (vacating a sentence on due process grounds where the
trial judge refused to permit the defendant to correct the
mistaken assumption that he was on probation when the offense
was committed).
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district court noted that: (1) in light of Dewire’s receipt of
child pornography on three previous occasions, it was not
convinced that the offense was an aberrant act; (2) because
Dewire had not been fully candid with his doctors about the
details of the offense and his past history, it had discounted
their opinions as to the risk of recidivism; and (3) the crime
itself was not spontaneous or thoughtless. Moreover, the
district court stated that even if Dewire had qualified on the
facts for a downward departure, it would as a discretionary
matter decline to depart because it felt that a prison sentence
was necessary to vindicate the goals of specific and general
deterrence and to appropriately recognize the seriousness of the
offense.
Given that the district court did not misunderstand its
authority to depart and therefore made no mistake of law, we
hold that we lack jurisdiction to entertain this appeal.
Consequently, we need not address the appellant’s other
arguments.9
9
If, however, we were to consider this appeal on the
principal ground urged by appellant (factual mistake), we would
conclude that the record clearly shows that the district court's
decision to deny a departure was ultimately based not on the
alleged downloading of the child pornography, but on other
considerations concerning the nature of the crime. We are
obligated to "review a trial court's actions as they are made
manifest in the record." United States v. Tavano, 12 F.3d 301,
304 (1st Cir. 1993). Here, an experienced and thoughtful trial
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Affirmed.
judge stated repeatedly on the record that he would have imposed
the same sentence regardless of the child pornography evidence.
Dewire argues that it was humanly impossible for the court to
have actually made its decision independent of the disturbing
images of children engaged in sexual activity with adults. This
argument asks us to find that the judge’s extensive comments
about his reasons for imposing sentence were deliberately
untruthful or disingenuous. We decline the invitation.
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