[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAY 31, 2007
No. 06-15067 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00037-CR-OC-10-GRJ
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
versus
WESTLY BRIAN CANI,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(May 31, 2007)
Before ANDERSON, BARKETT and PRYOR, Circuit Judges.
PER CURIAM:
The government appeals the 12-month sentence of Westly Brian Cani for
various crimes related to the possession and distribution of heroin as an inmate in a
federal penitentiary. See 18 U.S.C. § 1791(a)(1), (a)(2), (b)(1), (d)(1)(C); 21
U.S.C. § 841(a)(1), (b)(1)(C); 21 U.S.C. § 846. The Presentence Investigation
Report calculated an advisory Sentencing Guidelines range of 262 to 327 months
of imprisonment, which the district court recalculated downward to a range of 12
to 18 months of imprisonment before it imposed the sentence of 12 months of
imprisonment. The government contends that the district court erroneously
departed downward from the initial Guidelines range and imposed an unreasonable
sentence. Because we agree that the district court erred when it departed
downward, we vacate Cani’s sentence and remand to the district court for
resentencing. We do not reach the question whether Cani’s sentence is
unreasonable.
During the sentencing hearing and in its post-hearing memorandum, the
district court began by identifying the applicable Guidelines range to be 262 to 327
months of imprisonment, based on an offense level of 34 and a criminal history
category of 6. The district court next considered Cani’s arguments for downward
departure, after which the court reduced Cani’s offense level to 6 and recalculated
the applicable Guidelines range to be 12 to 18 months of imprisonment. The
district court then evaluated the factors of section 3553(a) and sentenced Cani to 12
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months of imprisonment and 6 months of community confinement.
The government contests both the downward recalculation of the applicable
Guidelines range and the ultimate sentence imposed. First, the government argues
that the district court based the downward departure on at least one impermissible
factor and did not provide adequate explanation of the departure to allow
meaningful review by this Court. Second, the government contends that the 12-
month sentence is procedurally and substantively unreasonable.
We review de novo whether a factor is a permissible ground for a downward
departure from the Guidelines. United States v. Crawford, 407 F.3d 1174, 1178
(11th Cir. 2005). The district court based the downward departure on an
impermissible factor. The district court departed downward primarily because of
Cani’s addiction to heroin, which the court described as the “overriding factor in
Cani’s case.” The Guidelines make clear that “[d]rug or alcohol dependence or
abuse is not a reason for a downward departure.” United States Sentencing
Guidelines § 5H1.4 (Nov. 2005); see also id. § 5K2.0(d)(1) (identifying drug
dependence or abuse as “prohibited departures”).
The district court also failed to provide adequate explanation of the other
grounds for the downward departure to allow meaningful appellate review.
Although the district court identified grounds for downward departure other than
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Cani’s drug addiction, the district court declined to attribute specific levels of
departure to each ground. “[W]e cannot discern to what extent the district court
would have departed had it not [erroneously] considered the [drug addiction].”
United States v. Dailey, 24 F.3d 1323, 1329 (11th Cir. 1994).
The district court failed to provide an explanation where specificity was
required. Several of the grounds for downward departure on which the district
court relied are described in the Guidelines as “not ordinarily relevant,” U.S.S.G.
§§ 5H1.3, 5H1.4, 5H1.6, yet the district court made no effort to explain the
extraordinary relevance in this circumstance. The district court relied on section
5K2.10, which provides six factors a district court should consider, but the district
court failed to discuss the factors. Cf. United States v. McVay, 447 F.3d 1348,
1356 (11th Cir. 2006) (“[M]eaningful appellate review is simply not possible due
to the district court’s . . . failure to consider the § 5K1.1(a) factors . . . .”).
Because the district court based the downward departure in part on an
impermissible factor and did not provide adequate explanation to allow meaningful
review by this Court, Cani’s sentence is VACATED and REMANDED for
resentencing in a manner consistent with this opinion.
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