United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS November 20, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-20194
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
versus
RUBY D. HENRY BELL,
Defendant-Appellee.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
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Before JOLLY and WIENER, Circuit Judges, and WALTER,* District
Judge.
PER CURIAM:
Defendant-Appellee Ruby D. Henry Bell was convicted on a plea
of guilty for using a telephone to convey a false threat to damage
or destroy a building by means of an explosive, in violation of 18
U.S.C. § 844(e). At sentencing, the district court granted a
defense motion to depart downward within the U.S. Sentencing
Guidelines (“U.S.S.G.” or the “Guidelines”) from a criminal history
category of VI to a criminal history category of IV. The district
court appears to have granted this motion on the basis of
*
District Judge for the Western District of Louisiana,
sitting by designation.
overstatement of criminal history, as provided for by Guidelines
§ 4A1.3; however, the sentencing colloquy also discussed Bell’s
mental health issues and the court’s concern that incarceration
would lead to a break in her mental health treatment, which the
court wanted to avoid. Because the district court conflated the
elements of several distinct Guidelines provisions in its
discussion of the downward departure, making the true basis for
that departure unclear, we vacate and remand for resentencing.
I. Facts and Proceedings
In an apparent attempt to force the cancellation or
postponement of her probation hearing, Bell telephoned police and
mendaciously informed them that Pakistani terrorists had planted a
bomb at the Brazos County Courthouse in Bryan, Texas. Acting on
Bell’s false report, state and local police, as well as the FBI,
initiated an intense investigation, which resulted initially in the
arrest and incarceration of a Pakistani immigrant.1 Cellular
telephone records helped the police identify Bell as the caller,
after which she was indicted and charged under 18 U.S.C. § 844(e).
Bell pleaded guilty to the indictment, and the pre-sentence
report (PSR) recommended a total offense level of 6, a criminal
history category of VI, and a guideline imprisonment range of 12 to
1
The investigation uncovered the fact that the arrested
individual had forged documents to enter the United States.
2
18 months. Bell did not object to the PSR,2 but she made a motion
for downward departure, which the district court granted, revising
her criminal history category downward from VI to IV. This
departure made Bell eligible for probation, and the court assessed
a “term of probation” of three years, subject to conditions that
included six months’ home confinement, community service, and
participation in treatment programs for drug and alcohol addiction
and mental health.
II. Analysis
A. Standard of Review
On April 30, 2003, the Prosecutorial Remedies and Other Tools
to end the Exploitation of Children Today Act of 2003 —— the
PROTECT Act (the “Act”) —— was signed into law.3 The Act changed
the standard of review applicable when courts of appeals consider
departures from the Guidelines, but only in specified situations.
Because the Act became effective after Bell was sentenced and after
the government filed its notice of appeal, we must decide (1)
whether the Act applies retroactively to litigants in Bell’s
position, and (2) if so, whether the Act changes the standard of
review in the instant case, given the circumstances surrounding the
district court’s departure.
1. Retroactivity
2
Bell did correct two factual inaccuracies in the PSR, but
neither is relevant to our discussion today.
3
Pub. L. 108-21, 117 Stat. 650 (April 30, 2003).
3
Although we have not yet considered the Act’s new standard of
review, we have examined retroactive application of newly-announced
standards of review generally. In United States v. Mejia, we
characterized a change in the standard of review as “procedural
rather than substantive because it neither increases the punishment
nor changes the elements of the offense or the facts that the
government must prove at trial.”4 As the Supreme Court has long
held that procedural changes in the law may be applied
retroactively without violating the Constitution’s ban on ex post
facto laws,5 we held in Mejia that the trial court correctly
applied a standard of review that was announced after the actions
that led to the criminal charge in that case.
The two other circuit courts that have considered the Act’s
standard-of-review provision have based their ultimate decision ——
to apply such standard retroactively —— on the well-known
4
844 F.2d 209, 211 (5th Cir. 1988).
5
See, e.g., Miller v. Florida, 482 U.S. 423, 430 (1987)(“[N]o
ex post facto violation occurs if a change does not alter
‘substantial personal rights,’ but merely changes ‘modes of
procedure which do not affect matters of substance.’” quoting
Dobbert v. Florida, 432 U.S. 282, 293 (1977)); Lindh v. Murphy, 521
U.S. 320, 327 (1997)(noting that if the statute at issue “were
merely procedural in a strict sense (say, setting deadlines for
filing and disposition ...), the natural expectation would be that
it would apply to pending cases.”)(citation omitted).
4
procedural/substantive dichotomy.6 As the First Circuit explained
in United States v. Thurston,
Changing the appellate standard of review, as done here,
could upset no legitimate reliance interest by a
defendant, could not have induced alteration of the
behavior that led to the crime, and could not have upset
settled expectations. We see no unfairness to defendants
in Congress’s requiring a closer look by appellate courts
at whether a district court committed an error in
deciding that the guidelines permitted a departure.7
We agree with that concise statement of the issue, and conclude
that the Act’s de novo standard of review may be applied in cases,
like the instant one, in which sentencing occurred before the Act’s
enactment date. This comports with the Supreme Court’s
retroactivity jurisprudence as well as our prior holding in Mejia.
2. Applicability of the De Novo Standard
Prior to the Act, we reviewed a district court’s decision to
depart from the Guidelines for abuse of discretion.8 The Act
explicitly changed the standard of review, but only when courts of
appeals are considering determinations under subsections (3)(A) or
6
Although the Eighth Circuit, in United States v. Hutman, 339
F.3d 773 (8th Cir. 2003), simply applied the de novo standard
summarily, it did cite to Mejia, indicating that the
procedural/substantive distinction was the basis for that part of
its holding.
7
338 F.3d 50, 72 (1st Cir. 2003).
8
See United States v. Harris, 293 F.3d 863, 871 (5th Cir.
2002) (“We review a district court’s departure from the range
established by the Guidelines for abuse of discretion. ... The
district court’s decision is accorded substantial deference because
it is a fact intensive assessment and the district court’s findings
of fact are reviewed for clear error.”)(citation omitted).
5
(3)(B) of 18 U.S.C. § 3742 (e). In all other instances, we still
employ an abuse of discretion standard:
The court of appeals shall give due regard to the
opportunity of the district court to judge the
credibility of the witnesses, and shall accept the
findings of fact of the district court unless they are
clearly erroneous and, except with respect to
determinations under subsection (3)(A) or (3)(B), shall
give due deference to the district court’s application of
the guidelines to the facts. With respect to
determinations under subsection (3)(A) or (3)(B), the
court of appeals shall review de novo the district
court’s application of the guidelines to the facts.9
Subsection 3(A) deals with a district court’s failure to include a
written statement of reasons for the departure, as required by 18
U.S.C. § 3553(c), and is inapplicable in the instant case. Thus,
if we conclude that our review of the instant case does not fall
under subsection 3(B) either, the de novo standard of review
specified in the Act would be inapplicable here.
Subsection 3(B) mandates that courts of appeals should
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.” We read this language to mean that if a
district court departs based on a factor that does advance the
objectives set forth in section 3553(a)(2), then review of that
determination does not fall under subsection 3(B).
9
18 U.S.C. § 3742(e)(as amended by the Act)(emphasis added).
6
One objective listed by § 3553(a)(2) is “the need for the
sentence imposed ... (D) to provide the defendant with needed
educational or vocational training, medical care, or other
correctional treatment in the most effective manner.” Bell’s
sentencing colloquy makes clear that the district court was most
concerned about the interruption that incarceration would cause in
Bell’s mental health treatment, mentioning this several times
before announcing its decision:
So I’m conflicted between my strong desire to see Ms.
Bell punished for her actions in this particular case and
my concern about a [sic] creating a break in her mental
health treatment that she’s currently receiving, which I
think would be the unfortunate result of a period of
incarceration.... [E]ven [though] the potential period of
incarceration is so limited, I think that there is a
significant likelihood that there would be a break in her
mental health treatment and counseling that would be too
long, and that a period of incarceration of the length
that we’re talking about would put us in a position of
... putting Ms. Bell back into the community in not as
good a mental health state as she currently has as a
result of that break in treatment. So I’m going to grant
the motion for downward departure on this basis ...
(emphasis added).
We find inescapable the conclusion that the district court’s
evident concern about a break in Bell’s treatment was a “factor” on
which the departure was based. As that factor advanced the
objective that Bell receive “needed ... medical care ... in the
most effective manner,” Bell’s sentencing is not a determination
under 18 U.S.C. § 3742(e)(3)(A) or (B), so our traditional abuse of
discretion standard of review still applies.
7
The government argues that because the Statement of Reasons
attached to the judgment notes only over-representation of criminal
history as the basis for the downward departure,10 we may not
consider the district court’s evident concern with Bell’s mental
health treatment. As support for this proposition, the government
notes statutory provisions that require the written statement of
reasons.11 These provisions, however, discuss situations in which
the district court has “failed to provide” the required statement
of reasons with the order of judgment. There is no dispute that
here the district court did “provide” a written statement of
reasons; thus, the relevant inquiry is whether we can consider a
factor that obviously played a significant role in the district
court’s decision but was not mentioned in that statement of
reasons.
In the end, we cannot see why we would not consider the
sentencing colloquy as well as the court’s written reasons. The
statutory language at issue neither defines “factor” nor expressly
limits an appellate court’s consideration of factors underlying a
sentencing departure to those expressed in the statement of
reasons. Under these circumstances, and mindful of the statutory
10
Immediately following its statements quoted above, the
district court indicated that the basis for its decision was over-
representation of criminal history: “So I’m going to grant the
motion for downward departure on this basis, on the basis of the
criminal history issue.”
11
The government points to 18 U.S.C. § 3742 (e)(3)(A) and
(f)(2)(B) on this issue.
8
canon of construction that we give terms their ordinary and common
meaning,12 we are satisfied that the district court’s desire to
prevent an interruption of Bell’s mental health care was a factor13
on which the downward departure was based, at least in part. As
the departure thus furthered the goal of § 3553(a)(2)(D), our
review of that departure is not controlled by § 3742(e)(3)(A) or
(B), and we do not apply the de novo standard of review established
by the Act. Instead, we review the departure for abuse of
discretion, and the findings of fact for clear error.14
12
See, e.g., Perrin v. United States, 444 U.S. 37, 42
(1979)(“A fundamental canon of statutory construction is that,
unless otherwise defined, words will be interpreted as taking their
ordinary, contemporary, common meaning.”).
13
Distinct from its common-law commercial agent definitions,
Black’s Law Dictionary defines “factor” as “[a]ny circumstance or
influence which brings about or contributes to a result....”
BLACK’S LAW DICTIONARY 592 (6th ed. 1990).
14
See United States v. Harris, 293 F.3d 863, 871 (5th Cir.
2002).
9
B. Downward Departure
With the proper standard of review established, we now
consider whether the district court abused its discretion when it
departed downward on the express basis of an over-represented
criminal history. The Guidelines indicate that a downward
departure may be appropriate when “reliable information indicates
that the defendant’s criminal history category substantially over-
represents the seriousness of the defendant’s criminal history or
the likelihood that the defendant will commit other crimes.”15 The
Guidelines require that the sentencing court “specify in writing
... (2) [i]n the case of a downward departure, the specific reasons
why the applicable criminal history category substantially over-
represents the seriousness of the defendant’s criminal history or
the likelihood that the defendant will commit other crimes.”16
Given the presence of the statutorily-required written statement of
reasons in the instant case, we again encounter the problem that we
had to address in our determination of the applicable standard of
review, viz., that the court’s written statement of reasons does
not mention the factors that appear to have figured most
prominently in its decision to depart downwardly, as demonstrated
in the sentencing colloquy.
15
U.S.S.G. § 4A1.3(b)(1).
16
U.S.S.G. § 4A1.3(c).
10
To repeat, the sentencing colloquy reflects the district
court’s desire to prevent an interruption in Bell’s mental health
treatment, its belief that her “mental health problems” were a
factor in her previous crimes, and its finding that “her diminished
capacity has been aggravated somewhat by the fact that she was
overmedicated for a time.” In contrast, the court’s written
statement of reasons indicates only that “the nature of the
defendant’s criminal history, which is comprised mostly of non-
violent, petty theft offenses, overrepresents her criminal history
category.” The written statement makes no mention of other
factors.
The government asserts that (1) the record does not reflect
that Bell’s criminal history category significantly over-
represented the seriousness of her criminal behavior or her
likelihood of recidivism, and (2) mental and emotional conditions
can only be relevant when considering a downward departure under
U.S.S.G. § 5K2.13. For the latter proposition, the government
cites our 2000 decision in United States v. Thames, in which we
concluded that “the guidelines have already adequately taken into
consideration a defendant’s mental capacity with § 5K2.13, and thus
§ 5K2.0 is inapplicable to Thames’[s] claim that his diminished
mental capacity, derived from his gambling addiction, entitles him
to consideration for a downward departure.”17
17
214 F.3d 608, 615 (2000). U.S.S.G. § 5K2.0(a) allows a
district court to base a departure on “an aggravating or mitigating
11
The defendant in Thames argued that “his mental condition made
his criminal conduct ‘inadvertent behavior,’” essentially trying to
argue diminished capacity under U.S.S.G. § 5K2.0 instead of §
5K2.13.18 Although the Thames decision certainly informs our
decision today, we believe that the instant case is distinguishably
different. Here, the question is whether three distinct factors ——
(1) the district court’s finding that Bell had been over-medicated
for a period of time,19 (2) the defendant’s history of mental
illness, and (3) the district court’s belief that the defendant was
“receiving adequate mental health treatment and counseling” at the
time of sentencing and that interruption of that treatment would
not “serve the defendant or the society well” —— can provide
justification for the district court’s ruling that a criminal
history category of VI “substantially over-represents the
seriousness of the defendant’s criminal history or the likelihood
circumstance of a kind, or to a degree, not adequately taken into
consideration by the Sentencing Commission in formulating the
guidelines....”
18
Thames, 214 F.3d at 614.
19
This is a factual finding, to be reviewed for clear error
in the instant case. We cannot say that the district court clearly
erred in determining that Bell had been over-medicated in the past,
and in fact the government, although still contesting the downward
departure, conceded during the sentencing hearing that it “[did
not] doubt that her being overmedicated by the psychotropic drugs
that she was taking is a factor in this case ...”
12
that the defendant will commit other crimes.”20 We believe, with
some caveats, that they can.
The district court appears to have concluded that the
defendant’s history of mental illness, in combination with her
over-medication during the period in which some of her prior crimes
were committed and the non-violent, “petty” nature of those crimes,
made a criminal history category of VI inappropriately high. One
distinct factor that appears to have motivated the district court
was a desire to prevent a break in Bell’s mental health treatment,
which the court evidently believed would undermine her progress and
subvert the goal advanced by § 3553(a)(2)(D). It would not be a
per se abuse of discretion for the district court to find that a
history of over-medication by psychotropic drugs, combined with
prior offenses that are nonviolent, “petty” crimes, are adequate
bases for a downward departure under U.S.S.G. § 4A1.3.21 Neither
would it necessarily be an abuse of discretion for a district court
to justify a downward departure under Guidelines § 5K2.0 on the
court’s determination to prevent a break in mental health treatment
based on factual findings that incarceration would occasion such a
break and thereby be detrimental to society’s and the defendant’s
interests. At the same time, our Thames decision forecloses
20
U.S.S.G. § 4A1.3(b)(1).
21
If this were the only basis for departure, however, we might
subject such a decision to de novo review, because the desire to
prevent a break in treatment would not be implicated.
13
consideration of mental health as the basis for a downward
departure when that factor implicates diminished capacity regarding
the crimes at issue, except under U.S.S.G. § 5K2.13.22
The sentencing court’s written statement of reasons is
unclear, however, as to which of the foregoing factual
possibilities, if any, is applicable in the instant case. The
district court might have improperly considered Bell’s mental
health in contravention of Thames; or it might have examined
factors under Guidelines §§ 4A1.3 and 5K2.0, concluded that a
downward departure was appropriate, yet failed to include a
detailed identification of its reasons in the written statement.
In any event, we cannot resolve the uncertainty from the
court’s written statement, and we decline to proceed without a
clearer understanding of the district court’s reasons. Even under
the deferential abuse-of-discretion standard, we must have enough
information to determine what conclusions the district court
reached, before we can decide whether its actions were within its
exercise of discretion. We therefore vacate Bell’s sentence and
remand her case to the district court to clarify its reasoning.
Otherwise, the written statement requirement would be feckless in
cases such as this.
III. Conclusion
22
As was the case in Thames, a downward departure under
U.S.S.G. § 5K2.13 is not available to Bell because her crime
involved a “serious threat of violence.”
14
For the foregoing reasons, Bell’s sentence is
VACATED and her case REMANDED for resentencing consistent with this
opinion.
15
E. GRADY JOLLY, Circuit Judge, specially concurring:
I concur in the vacating of Bell’s sentence. I write only to
say, respectfully, that given the seriousness and length of the
defendant’s criminal record and the seriousness of the crime she
committed, any sentence reduction for the reasons advanced by the
district court would seem, in my opinion, unjustifiable. The
sentencing guidelines make clear that Bell’s mental and emotional
condition is generally irrelevant when considering a downward
departure under Guideline § 4A1.3. U.S.S.G. § 5H1.3.***************
***************
Guideline § 5H1.3 provides that: “Mental and
emotional conditions are not ordinarily relevant in determining
whether a sentence should be outside the applicable guideline
range, except as provided in Chapter 5, Part K, Subpart 2.”
16