United States v. Bell

United States Court of Appeals
Fifth Circuit
F I L E D
May 19, 2004
IN THE UNITED STATES COURT OF APPEALS
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

--------------------

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).1 At sentencing, the district court granted a

*
District Judge for the Western District of Louisiana,
sitting by designation.
1
The original panel opinion in this case issued November
20, 2003. The government filed a petition for rehearing en banc,
contending that we had misconstrued the new standard of review
provisions contained in the Prosecutorial Remedies and Other
Tools to end the Exploitation of Children Today Act of 2003 ——
the PROTECT Act —— Pub. L. 108-21, 117 Stat. 650 (April 30,
2003). The arguments contained in that petition, combined with
subsequent interpretations of the PROTECT Act by other circuits,
have convinced us that revisions to our discussion of the PROTECT
Act’s new standard of review are appropriate. Accordingly, we
withdraw our prior opinion, published at United States v. Bell,
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

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.2 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

351 F.3d 672 (5th Cir. 2003), and substitute this one, albeit our
judgment in Ms. Bell’s case remains the same.
2
The investigation uncovered the fact that the arrested
individual had forged documents to enter the United States.

2
report (PSR) recommended a total offense level of 6, a criminal

history category of VI, and a guideline imprisonment range of 12 to

18 months. Bell did not object to the PSR,3 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

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.4 The Act changed

the standard of review courts of appeals apply when considering

some aspects of sentencing departures, essentially establishing a

two-tier review of such departures. 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, how

the new standard of review is properly applied in the instant case,

given the circumstances surrounding the district court’s departure

and its reasons for departing.

3
Bell did correct two factual inaccuracies in the PSR, but
neither is relevant to our discussion today.
4
Pub. L. 108-21, 117 Stat. 650 (April 30, 2003).

3
A. Retroactivity

Prior Fifth Circuit panels have examined retroactive

application of newly-announced standards of review. 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.”5 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,6 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.

Other circuit courts that have considered the Act’s standard-

of-review provision have based their ultimate decision —— to apply

such standard retroactively7 —— on that well-known

procedural/substantive dichotomy.8 As the First Circuit explained

5
844 F.2d 209, 211 (5th Cir. 1988).
6
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).
7
See, e.g., United States v. Mallon, 345 F.3d 943, 946-47
(7th Cir. 2003); United States v. Willey, 350 F.3d 736, 738-39
(8th Cir. 2003).
8
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

4
in United States v. Thurston,

The change of a standard of appellate review is one in
procedure for the courts; procedural changes that do not
affect substantial rights are not usually considered
impermissibly retroactive .... The PROTECT Act’s
alteration of the appellate standard of review upsets no
legitimate reliance interest by a defendant; it could not
have induced alteration of the behavior that led to the
crime. 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. It is the substance of
the sentencing rules, both in the Guidelines and in the
underlying statutes, that affects defendants.9

We agree with that assessment of the issue, and conclude that the

Act’s de novo standard of review is applicable 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.

B. Application 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.10 The Act

explicitly changed the standard of review, but only when courts of

appeals consider “determinations under subsection 3(A) or 3(B)” of

18 U.S.C. § 3742(e), which subsections encompass (1) the district

procedural/substantive distinction was the basis for that part of
its holding.
9
358 F.3d 51, 71-72 (1st Cir. 2004)(citation, footnote
omitted).
10
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
court’s issuance of a written statement of reasons for the

departure, and (2) the legality of, justification for, and

objectives advanced by the factors on which the departure was

based. The relevant statutory language, dealing with guideline

departures and their review, is as follows:

(e) Consideration. Upon review of the record, the court of
appeals shall determine whether the sentence—

....

(3) is outside the applicable guideline range, and

(A) the district court failed to provide the written
statement of reasons required by section 3553(c);

(B) 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; or

(C) the sentence departs to an unreasonable degree from
the applicable guidelines range, having regard for
the factors to be considered in imposing the
sentence, as set forth in section 3553(a) of this
title and the reasons for the imposition of the
particular sentence, as stated by the district
court pursuant to the provisions of section
3553(c); ...

....

The court of appeals shall give due regard to the opportunity
of the district court to judge the credibility of 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

6
 the facts.11

We read this language as mandating a two-tier review of

guideline departures, which are addressed generally by subsection

(3). First, we must review de novo the sentencing court’s decision

to depart (under subsection (3)(B)), determining whether the

departure is based on appropriate factors and taking into account

the statutory provisions listed in (3)(B)(i) and (ii), the facts of

the case under review, and the sentencing court’s application of

the guidelines to those facts.12 Second, if we find the decision

to depart to be appropriate, we must review the degree of that

departure for abuse of discretion, based on the sentencing court’s

written statement of reasons for the departure provided pursuant to

§ 3553(c). Other courts of appeal that have considered the Act’s

new standard of review provisions have also concluded that such a

two-tier framework is appropriate.13

1. The decision to depart

The stated basis for Bell’s sentencing departure, noted in the

district court’s written statement of reasons, was that Bell’s

criminal history category over-represented the seriousness of her

11
18 U.S.C. § 3742(e) (emphasis added).
12
The Act also requires de novo review of the question
whether the district court “failed to provide the written
statement of reasons required by section 3553(c).” 18 U.S.C. §
3742(e)(3)(A). The district court did provide such a written
statement of reasons in the instant case (although there is some
question as to its adequacy, which is discussed in section
II.B.2, infra), so subsection (e)(3)(A) is inapplicable.
13
See, e.g., United States v. Mallon, 345 F.3d 943, 946
(7th Cir. 2003); United States v. Jones, 332 F.3d 1294, 1299
(10th Cir. 2003).

7
past offenses, thus warranting a departure under U.S.S.G. §

4A1.3(b)(1). This “factor” on which the departure was based

clearly meets section 3742(e)(3)(B)(i) and (ii)’s requirements, in

that this basis for departure has already been considered and

approved by the Sentencing Commission. We agree with the First

Circuit that, “in reviewing a departure under § 3742(e)(3)(B)(i)

and (ii), [we] must accept and may not look behind the Sentencing

Commission’s determination that a particular categorical basis for

departure is permissible or impermissible.”14 We must nevertheless

conduct our review under subsection (3)(B)(iii) and decide whether

the departure on that basis is “justified by the facts of the

case.” This task is complicated by the facts that (1) we must

endeavor to do so without reviewing the degree of the departure, as

the latter is to be reviewed under subsection (3)(C), and (2) we

must employ our traditional abuse of discretion standard —— not the

Act’s newly-imposed de novo review —— regarding that prong of the

analysis.15

14
U.S. v. Thurston, 2004 U.S. App. LEXIS 1658, *59 (Feb. 4,
2004).
15
We note also that, as a practical matter, when
determinations under subsection (3)(B)(i) and (ii) are necessary
—— i.e., where the factor on which the departure was based has
not already been approved by the Sentencing Commission —— review
under these subsections becomes almost nonsensical under the
Act’s new framework. Specifically, it seems impossible to
determine whether a departure advances the objectives set forth
in section 3553(a)(2), which include reflecting the seriousness
of the offense, providing adequate deterrence, and providing the
defendant with adequate correctional treatment, without
considering the degree of the departure and the actual sentence
imposed. The degree of departure, however, is to be reviewed
only for abuse of discretion under subsection (3)(C), by the
express language of the Act. If the degree of the departure is

8
 As we review the degree of the departure for abuse of

discretion only, which makes sense in light of the district court’s

superior vantage point to make that fact-intensive determination,

we conclude that the review under subsection (3)(B)(iii) is more

generalized, asking whether a departure (as opposed to the specific

departure granted) on the grounds proffered can be justified under

the facts of the case. Even that limited inquiry, however, is

impossible in the instant case because of the absence of

specificity in the district court’s written statement of reasons

and its apparent conflation of several different grounds for

departure.

Our concerns on this point center on the district court’s

apparent grounding of its decision to depart in factors that it did

not discuss in its written statement of reasons. For instance, in

the sentencing colloquy, the district court voiced concern that any

period of incarceration would necessarily entail a break in Bell’s

mental health treatment:

So I’m conflicted between my strong desire to see Ms.
Bell punished for her actions ... 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 ... we’re talking about ... putting Ms. Bell back
into the community in not as good a mental health state

considered in any substantive way while making determinations
under subsection (3)(B), we would effectively be expanding de
novo review to the degree of the departure, thus rendering review
under subsection (3)(C) superfluous and contradicting the express
statutory directive.

9
 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, on the basis of the criminal
history issue. (emphasis added).

This concern for Bell’s mental health treatment was not addressed

in the district court’s statement of reasons required by 3553(c),

yet it appears to be a “factor” on which the downward departure was

based. The statutory framework is unclear as to whether a

reviewing court may consider “factors” that are not discussed in

the written statement of reasons when making determinations under

subsection (3)(B). As the written statement of reasons is also

crucial to our determination under subsection (3)(C) regarding the

degree of the departure,16 we conclude that we must require

clarification from the district court of its reasoning in any

event, which in turn requires a remand.

2. The sentencing colloquy vis-à-vis the written statement
of reasons

The district court appears to have conflated several separate

grounds for departure, as reflected in the text of the sentencing

colloquy. That colloquy evidences 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

16
18 U.S.C. § 3742(e)(3)(C) indicates that we should
consider “the reasons for the imposition of the particular
sentence, as stated by the district court pursuant to the
provisions of section 3553(c).”

10
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.”

This contrast in reasons raises questions as to both the

propriety of the decision to depart and the reasonableness of the

degree of that departure. In United States v. Thames, we held that

“the guidelines have already adequately taken into consideration a

defendant’s mental capacity with § 5K2.13, and thus § 5K2.0 is

inapplicable to [the defendant’s] claim that his diminished mental

capacity, derived from his gambling addiction, entitles him to

consideration for a downward departure.”17 Obviously, this means

that mental capacity may only be taken into account in certain ways

in this circuit, and the written statement of reasons provides no

clues as to how the district court considered this factor.

The defendant in Thames had 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 Here, by contrast, it seems that three distinct

factors —— (1) the district court’s finding that Bell had been

over-medicated for a period of time,19 (2) Bell’s history of mental

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 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
Even though the government continues to contest the
downward departure, it conceded during the sentencing hearing
that it “[did not] doubt that [Bell’s] being overmedicated by the

11
illness, and (3) the district court’s belief that Bell 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” —— were relied on by

the district court as justification for its ruling that a criminal

history category of VI “substantially over-represents the

seriousness of the defendant’s criminal history or the likelihood

that the defendant will commit other crimes.”20

It would not necessarily be improper for a 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 the downward departure allowed here under

U.S.S.G. § 4A1.3. Neither would it necessarily be improper for a

district court to justify this 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 the interests

of society and the defendant. At the same time, our Thames

decision forecloses consideration of mental health as an indicator

of diminished capacity regarding the crimes at issue, except under

U.S.S.G. § 5K2.13.21

psychotropic drugs that she was taking is a factor in this case
...”
20
U.S.S.G. § 4A1.3(b)(1).
21
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.”

12
 The sentencing court’s written statement of reasons is

unclear, however, as to which one or more 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, and merely 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 required under

subsection (3)(C), we must have enough information to determine

what conclusions the district court reached, before we can decide

whether the sentence imposed was within the proper exercise of the

sentencer’s discretion. We therefore vacate Bell’s sentence and

remand her case to the district court to clarify its reasoning.

III. Conclusion

For the foregoing reasons, Bell’s sentence is

VACATED and her case REMANDED for resentencing consistent with this

opinion.

13