United States v. Pressley

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT
U.S. COURT OF APPEALS
_________________________ ELEVENTH CIRCUIT
September 16, 2003
No. 02-10674 THOMAS K. KAHN
_________________________ CLERK

D.C. Docket No. 95-00189-CR-JEC-1-2

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

THOMAS PRESSLEY,

Defendant-Appellant.

_________________________

Appeal from the United States District Court for the
Northern District of Georgia
_________________________
(September 16, 2003)

Before EDMONDSON, Chief Judge, KRAVITCH and GIBSON*, Circuit Judges.

JOHN R. GIBSON, Circuit Judge:

*Honorable John R. Gibson, United States Circuit Judge for the Eighth Circuit, sitting by
designation.
 Thomas Pressley appeals from the sentence of 360 months' imprisonment

that the district court imposed upon him on remand from this court for

resentencing. Pressley argues that on remand the district court erred in imposing

consecutive sentences under United States Sentencing Guidelines § 5G1.2 and in

declining to depart downward from the guidelines sentence on the ground that his

offense level overstated the seriousness of his offense or that the conditions of his

presentence confinement were extraordinarily harsh. We remand for the district

court to exercise its discretion as to whether to depart on the basis of conditions of

presentence confinement.

Pressley was indicted on May 3, 1995 and convicted by a jury on November

1, 1996 on nine counts, including one count of continuing criminal enterprise, two

counts of conspiracy to possess cocaine with intent to distribute it, one count of

distribution of cocaine, one count of possession of cocaine with intent to distribute

it, one count of attempt to possess cocaine with intent to distribute it, and three

counts of money laundering in connection with the purchase of three automobiles.

The district court subsequently acquitted Pressley on the continuing criminal

enterprise count and sentenced him on the remaining counts. The court found

Pressley was responsible for between 50 and 150 kilograms of cocaine and gave a

two-point upward adjustment for role in the offense. The court adjusted upward

2
by two points for use of a weapon and two points for restraint of the victim, but

because those two adjustments arose out of the same conduct, the court concluded

that the two adjustments were double-counting and departed downward by two

points, to arrive at a sentencing range of 292 to 365 months. The court sentenced

Pressley to 292 months.

Pressley appealed, arguing that the district court erred in finding him

responsible for 50 kilograms or more of cocaine. We held the finding was not

clearly erroneous. United States v. Pressley, No. 99-12731, slip op. at 3 (11th Cir.

July 24, 2000) (per curiam) (unpublished). The government cross-appealed the

departure, and we reversed and remanded for resentencing without the departure.

Id., slip op. at 6.

The guidelines range without the downward departure was 360 months to

life. Because no count on which Pressley was convicted carried a 360-month

sentence, in order to achieve the guidelines target sentence, U.S.S.G. § 5G1.2

required the court to run two of the sentences consecutively.

On remand, Pressley moved for a downward departure on the grounds that

the guidelines sentence overstated the seriousness of Pressley's offense, that the

conditions of his presentence confinement were harsh, and that consecutive

sentences resulting in more jail time than the statutory maximum of any of his

3
crimes violated the spirit of Apprendi v. New Jersey, 530 U.S. 466 (2000).

The district court rejected Pressley's three arguments for departure and

sentenced him to 360 months' imprisonment, which was the bottom of the

guidelines range based on the court's findings from the first sentencing, without

the downward departure that we had reversed. The court imposed 240 months, the

statutory maximum, on Counts 2, 3, and 4, to run concurrently with each other,

and 120 months on Counts 5, 6, 13, 14, and 15, to run concurrently with each

other and consecutively to the sentences on Counts 2, 3, and 4.

I.

All three points on appeal involve the district court's refusal to depart

downwardly from the guidelines sentence. The first point also involves

interpretation of the guidelines and a legal argument that a provision of the

guidelines violates the Constitution.

Generally, we review the district court's application of the guidelines to the

facts for clear error. United States v. White, 335 F.3d 1314, 1317 (11th Cir.

2003). We review de novo its determination that the provision in question does

not violate the Constitution. See United States v. Tinoco, 304 F.3d 1088, 1099

(11th Cir. 2002) (review of constitutionality of statute), cert. denied, 123 S. Ct.

1484 (2003); United States v. Leasure, 319 F.3d 1092, 1096 (9th Cir. 2003)

4
(review of constitutionality of sentencing guidelines).

Review of guidelines departure decisions is governed by different rules

depending on whether the district court has chosen to depart or not to depart. We

may not review at all the district court's discretionary decision not to depart from

the guidelines' sentencing range, but we review de novo the question of whether

the district court erroneously believed it lacked authority to depart. United States

v. Mignott, 184 F.3d 1288, 1290 (11th Cir. 1999) (per curiam). Not only do we

examine whether the district court in fact believed it lacked authority to depart, but

we also review whether, if the district court held such a belief, it was based on

legal error. See United States v. Alfaro-Zayas, 196 F.3d 1338, 1342, 1344 (11th

Cir. 1999) (per curiam) (district court correctly concluded it had no authority to

depart in particular case); United States v. Webb, 139 F.3d 1390, 1395 (11th Cir.

1998) (district court concluded it had no authority to depart, but erred because

guideline authorized departure). Deciding whether the district court was correct in

a belief that it did not have authority to depart requires us to locate the boundaries

of the district court's departure authority.

Once a proposed ground for section 5K2.0 departure has been put forth by

the parties, the district court's departure decision entails three reviewable steps,

see United States v. Miller, 146 F.3d 1281, 1284 (11th Cir. 1998) (citing United

5
States v. Hoffer, 129 F.3d 1196, 1201 (11th Cir. 1997)), at each of which the

district court's authority to depart has an outer limit.1

First, the sentencing court must decide whether the facts of the case take the

case outside the heartland of the applicable guideline. Miller, 146 F.3d at 1285-

86. In making the heartland determination, the district court must ascertain

whether the presence of the proposed ground makes the case unusual, see United

States v. Steele, 178 F.3d 1230, 1239-40 (11th Cir. 1999) (lack of profit from

crime is not sufficiently atypical to support downward departure because there are

many drug cases where the defendant realizes little or no profit), and whether it is

unusual in a way that ought to lead to a different sentence, see United States v.

1
After oral argument in this case, Congress enacted the Prosecutorial Remedies and Tools
against the Exploitation of Children Today Act of 2003, Pub. L. No. 108-21, 117 Stat. 650, to be
known as the PROTECT Act. The PROTECT Act changed the standard of review we employ in
reviewing a district court's decision to depart. Before the PROTECT Act, the question of
whether the facts of a case supported a departure was reviewed for abuse of discretion. Koon v.
United States, 518 U.S. 81, 96-100 (1996). Under the PROTECT Act, where the sentence is
outside the guidelines range, we review de novo the district court's application of the guidelines
to the facts to decide whether the departure is based on a factor that (a) advances the objectives of
federal sentencing policy, (b) is authorized under 18 U.S.C. § 3553(b), and (c) is justified by the
facts of the case. 18 U.S.C. §§ 3742(e)(3) and (4) (as amended April 30, 2003).
Because § 3742(e)(3) (as amended) only governs review of decisions to depart and this
case involves a decision not to depart, the change in the standard of review is not directly
relevant to our case. But insofar as § 3742(e)(4) more tightly circumscribes the district courts'
authority to depart by applying a more stringent standard of review to their departure decisions, it
would bear on the question of whether the departures at issue would have been within the district
court's authority. However, none of the three departure issues before us is close enough to be
affected by this modification of the district court's authority. We have no need, therefore, to
decide whether the PROTECT Act applies to a case pending on appeal at the time of enactment.

6
Pickering, 178 F.3d 1168, 1173 (11th Cir. 1999) (district court erred in failing to

"undertake a refined assessment of the facts of Pickering's case in order to

demonstrate that it fell outside of the heartland in a way important to the statutory

purposes of sentencing"); see also United States v. Hirsch, 280 F.3d 811, 814 (7th

Cir. 2002) ("Just because a case has features that are unusual does not mean that a

departure is warranted. Rather the unusual features must suggest a rationale for a

difference in the sentence prescribed by the Guidelines."). Both aspects of this

determination are reviewable, see Steele, 178 F.3d at 1239-40 (reversing

departures because proposed ground not atypical); United States v. Maung, 320

F.3d 1305, 1309-10 (11th Cir. 2003) (reversing departure because avoiding

collateral effect of conviction on alien's immigration status not ground for

departure). Consequently, a district court would be correct to believe that it had

no authority to depart in a case which was not atypical or not atypical in any way

that ought to lead to a departure.

Second, the district court must determine whether the proposed ground for

departure was adequately taken into account by the Sentencing Commission in

formulating the guidelines. Hoffer, 129 F.3d at 1201; United States v. Melvin,

187 F.3d 1316, 1320 (11th Cir. 1999). Only circumstances not adequately taken

into account by the Commission justify a section 5K2.0 departure. 18 U.S.C. §

7
3553(b). The court should ask whether departures on the proposed ground are

forbidden, encouraged, or discouraged. Koon v. United States, 518 U.S. 81, 95-96

(1996). If forbidden, of course, the proposed ground cannot support a departure.

Id. If encouraged and not taken into account, the proposed ground will support a

departure in an appropriate case. Hoffer, 129 F.3d at 1200. If discouraged or if

encouraged but already taken into account by the guidelines (as, for example, a

specific offense characteristic), the proposed ground may serve as a basis for

departure only if it exists to a degree or in a form that makes the case different

from the ordinary case in which the proposed ground is present. Koon, 518 U.S. at

96. If the ground is not mentioned as a basis for departure, the court must decide

whether the factor was adequately taken into consideration in formulating the

guidelines, looking at the "structure and theory of both the relevant individual

guidelines and the Guidelines taken as a whole." United States v. Schlaen, 300

F.3d 1313, 1319 (11th Cir. 2002) (quoting Koon, 518 U.S. at 96), pet'n for cert.

filed, No. 02-11073 (June 2, 2003). A district court lacks authority to depart in a

case in which the proposed ground for departure was adequately taken into

account by the Sentencing Commission. See Steele, 178 F.3d at 1239 (abuse of

discretion to depart on ground that would negate enhancement provided by

guidelines).

8
 Third, if the factor takes the case out of the heartland, and the factor has not

been adequately taken into account by the Sentencing Commission, the district

court should decide whether the facts of the case before it exhibit the factor

sufficiently to support a departure. Miller, 146 F.3d at 1284; United States v.

Hernandez, 160 F.3d 661, 668 (11th Cir. 1998) (reviewing deferentially district

court's factual determination of "whether the factor relied on . . . to depart upward

is present to such a degree as to warrant an upward departure"). The district court

has the authority to depart only when the record supports its findings of fact,

which we review for clear error. See United States v. Kapelushnik, 306 F.3d

1090, 1095 (11th Cir. 2002) ("[T]he factor which removes the case from the

heartland of the guidelines and warrants a downward departure must be supported

by evidence in the record."); Steele, 178 F.3d at 1238-39 (abuse of discretion to

base departure on finding of fact contrary to jury verdict); United States v.

Tomono, 143 F.3d 1401, 1404 (11th Cir. 1998) (reversing departure where facts

relied on not proven); White, 335 F.3d at 1317 (clear error standard). We have

reversed sentences in which, although there was some evidence substantiating the

district court's findings of a mitigating factor, the facts found did not rise to the

level that would justify a departure. E.g., Pickering, 178 F.3d at 1172 (reversing

departure based in part on "aberrant behavior," where facts did not show behavior

9
was sufficiently aberrant to justify departure); Tomono, 143 F.3d at 1403-04

(reversing departure based on ignorance of law regarding importation of wildlife

due to cultural differences where defendant was dealer in wildlife and knew

something about the law).

Thus, considering the limits on the district court's authority to depart, we

proceed to examine the sentencing decision in this case to ascertain, first, whether

the district court believed it lacked authority to depart and if so, whether that

belief was erroneous.

II.

At the resentencing hearing on January 11, 2002, the district court rejected

each of the three bases Pressley offered as grounds for a downward departure. The

court held that the guidelines required it to impose consecutive sentences as

necessary to achieve the guidelines range. The court stated:

If it were a question do I have the discretion whether to make these
consecutive, then we would talk about that. But I will say on the
record, and Ms. Michaels then can understand where her appeal route
lies, I don't think I have any discretion.
I think that the guidelines, 5G1.2 if I've got the right number,
say that once you receive or you figure a guidelines number–let's say
it's 360 months–then if you've got enough counts to work with, you
have to use those counts. I see that as what the guidelines clearly say.

(emphasis added). We understand from the court's legal discussion that the court

10
believed both that U.S.S.G. § 5G1.2 made imposition of consecutive sentences

mandatory in this case and that no departure was possible on the ground that the

sentence mandated by section 5G1.2 violated the spirit of Apprendi v. New Jersey,

530 U.S. 466 (2000). Thus, the court did in fact believe that it lacked authority to

depart on this ground because there was no factor that made the case atypical in a

way that ought to lead to departure. United States v. Miller, 146 F.3d 1281, 1284

(11th Cir. 1998) (first of three steps for departure is determination of atypicality).

The court also discussed whether it could depart on the ground that the

offense level, as determined by the amount of drugs attributable to Pressley,

overrepresented the seriousness of his offense. Pressley's counsel argued that

Pressley possessed small amounts of drugs over a long period of time, which gave

him a large quantity of drugs (between 50 and 150 kilograms) as the basis of his

offense level, but that he was less culpable than someone who dealt in large

amounts of drugs. The court held that this argument was contrary to the

guidelines' sentencing scheme:

The argument that you are not a big deal drug dealer, the guidelines
work the way they work, and that is really just a way of saying the
guidelines overstate your offense, which is in fact an explicit
argument by Ms. Michaels, but it is not one that I believe I have the
power to entertain.
One could enact a drug sentencing system . . . I think it could
make sense, which is that for the fellow that has huge quantities of

11
 drugs on a few numbers of occasions, a Carlos Lederer or somebody
that just owns massive quantities that you can snapshot and you see
he's a kingpin, that kind of person deserves a 36 or a 38 [offense
level]. But the fellow who is kind of just eking out quantities over a
period of time to get up to that amount is not really a kingpin. He is
just a long-time drug dealer, which is not great, but the argument goes
that he shouldn't be receiving that kind of time.
That is an argument you can make, but that is not our
sentencing system. Our sentencing system does not make that kind of
distinction. So adding the numbers up . . . I see no ground for
departure in the fact that your seriousness is overrepresented. I will
say on the record I don't think the law would allow me. I do not think
I would be able to depart.

(emphasis added). Thus, the court held that it lacked authority to depart because

the factor in question had been taken into account by the guidelines. See Miller,

146 F.3d at 1284 (second of three steps for departure is determining whether

factor adequately taken into account by guidelines).

As a further ground, the court also stated that the amount of drugs

attributable to Pressley had been appealed and affirmed on appeal, so that the

amount was the law of the case:

As to what I must do under the law, and that is what I have to
follow, I see it as I have almost no discretion here in this case as to
the offense level. The last eleventh circuit case was the law of the
case. I can't go back behind that. The quantity was set as of the time
of that case.

So, the court held for two reasons that it had no discretion to depart on the

ground that the quantity of drugs attributed to Pressley overstated the seriousness

12
of his crime.

Finally, the court considered whether it could depart downward for the

custodial conditions Pressley had endured in presentence detention. Pressley

testified at the hearing: "Ever since I was down for the last six years, your honor, I

spent five years in confinement where I have not been outside. I spent 23 hours a

day at USP Atlanta every day, 23 hours a day lockdown. Before I came back on

this case I spent three years at pretrial and haven't been outside in five years total."

The court held that, while conditions of presentence confinement could be a

basis for departure in an appropriate case, as a matter of law the facts of Pressley's

case would not justify a departure:

Well, I will state on the record that I will not depart based on
custodial conditions; that my belief is that on the record in this
particular case that the eleventh circuit would not sustain me on such
a departure. Therefore, you may appeal me on that if you wish, which
means I don't want the eleventh circuit punting it back to me, saying
decide, because I'm saying here are the facts. And then they'll say
there's a general ground but, you know, look at the facts. And then
you look at the facts and they like them or they don't like them.
You know, if they think–the facts are the facts and I believe
based on the facts here they would not sustain that sort of downward
departure. If they disagree with me, then I guess we'll have a remand
on that. But I believe if I departed right now on these facts they
would reverse me. So I will state honestly that I don't believe I have
the power and that gives Ms. Michaels the right to appeal me on that.

The prosecutor asked for further clarification, and the court reiterated its

13
understanding that conditions of confinement could be a basis for departure, but

that the facts of this case, as a matter of law, would not support departure on that

ground:

I assume that there could be some conditions if somebody is getting
their toes chopped off or beaten up, but on the facts of this particular
case, I do not believe the eleventh circuit would uphold such a
departure and therefore I am declining to depart on that ground. . . . If
I have discretion, I would go lower than 360. There is no question
about that.

The court later added in a telephonic conference:

[W]ere I allowed to depart, if I had the power, what I would do is I
would give him approximately a day for a day. And if he has been in
five years, I would depart two and a half years, and I want the
eleventh circuit just to be real clear so they understand everything.

Thus, the court held that it lacked authority to depart on the presentence

confinement ground because the facts were insufficient as a matter of law. See

Miller, 146 F.3d at 1284 (third of three steps for departure is determination of

sufficiency of facts).

It is clear from the record that the district court believed it lacked authority

to depart on any of the three grounds urged by Pressley. We must determine

whether the district court's belief was right or wrong.

14
 III.

Pressley first argues that the district court erred in concluding that it was

obliged to impose the sentences on the various counts consecutively rather than

concurrently. His argument has three parts. First, he argues that imposing

consecutive sentences on the various counts would violate the spirit of Apprendi

v. New Jersey, 530 U.S. 466 (2000), by subjecting him to a total sentence

exceeding the statutory maximum for any single count. As long as the sentence

imposed on each count was within the statutory maximum for that conviction,

Apprendi does not forbid imposing the sentences consecutively. United States v.

Davis, 329 F.3d 1250, 1254-55 (11th Cir. 2003) (per curiam), pet'n for cert. filed,

No. 03-5748 (Aug. 6, 2003).

Second, Pressley argues that the district court erroneously considered itself

bound to follow U.S.S.G. § 5G1.2(d), which requires multiple sentences to be

served consecutively if the sentence specified by the guidelines is longer than the

sentence authorized for any individual count of conviction. We have recently

joined the majority of circuits, which holds that imposition of consecutive

sentences under section 5G1.2(d) is mandatory. Davis, 329 F.3d at 1253-54.

Third, Pressley argues that even though consecutive sentencing may be

mandatory under section 5G1.2(d), the district court could have imposed the

15
sentences concurrently by departing downward. A court may decline to impose

consecutive sentences, even when required by section 5G1.2, if there are grounds

for departing from the guidelines sentence. See United States v. Perez, 956 F.2d

1098, 1103 (11th Cir. 1992) (concurrent sentence required by section 5G1.2, but

district court could depart upward to impose consecutive sentence); see also

United States v. Fossett, 881 F.2d 976, 980 (11th Cir. 1989) (in section 5G1.3

case, "district court could have ordered appellant to serve her sentences

concurrently only if the court had followed the procedures for departing from the

sentencing guidelines"). The first step in deciding whether to depart is to identify

the proposed ground that renders the case atypical. Koon v. United States, 518

U.S. 81, 95 (1996). Pressley has not identified any reason for departing from

section 5G1.2(d) except the Apprendi argument that we have already determined

was based on an incorrect legal argument. The district court did not err in

determining that an incorrect legal argument provided no basis for a departure.

Pressley's reply brief raises a further argument for departure, developed in

United States v. Rahman, 189 F.3d 88, 157 (2d Cir. 1999) (per curiam), in which

the Second Circuit held that a district court could depart downward on the ground

that the defendant had been convicted of multiple charges for what was essentially

the same criminal conduct, resulting in more convictions available to run

16
consecutively in order to reach the full guidelines range. The Second Circuit's

theory was not that the guidelines range was unfairly manipulated by piling on

charges arising out of the same criminal conduct, since the guidelines' grouping

rules address this problem. See U.S.S.G. § 3D1.2. Instead, the theory was that by

piling on charges the prosecutor increased the number of counts available to run

consecutively in order to reach the guidelines range. In Rahman, the defendant El-

Gabrowny had a guidelines sentence of life imprisonment. 189 F.3d at 155. He

had been convicted on ten counts, the most serious of which carried a twenty-year

sentence. Nine of the counts arose out of what were essentially two criminal acts.

Id. at 156. Because of the number of counts of conviction, the application of

U.S.S.G. § 5G1.2 resulted in all ten sentences being run consecutively to reach a

fifty-seven-year sentence. The Second Circuit held that the Sentencing

Commission did not give adequate consideration to the possibility that arbitrary or

manipulative charging decisions (which were supposedly neutralized by the

grouping rules, see U.S.S.G. Ch. 3 Pt. D, Introductory Commentary ("In order to

limit the significance of the formal charging decision and to prevent multiple

punishment for substantially identical offense conduct, this Part provides rules for

grouping offenses together.")) would result in a longer sentence because of

17
U.S.S.G. § 5G1.2.2 Id. at 157. This reasoning assumes that the Sentencing

Commission would have preferred for the defendant's sentence to fall short of the

guidelines target because there were not enough years on the counts of conviction

to reach the guidelines' range. Actually, we believe U.S.S.G. § 5G1.2 is evidence

to the contrary, showing an intent on the part of the Commission to achieve a

sentence as close as possible to the guidelines' range.

Moreover, it would contradict our holding in Davis, that the imposition of

consecutive sentences under section 5G1.2 is mandatory, to hold that the operation

of the section was itself a basis for downward departure. We therefore hold that

the mere operation of section 5G1.2 to increase the available aggregate sentence

up to the guidelines' range, without more, does not render the case atypical.

Accordingly, the district court did not err in concluding that it had no authority to

depart from imposing consecutive sentences to the extent required by section

5G1.2.

2
The Third Circuit has held that section 5G1.2 does not limit a district court's discretion
to choose under 18 U.S.C. § 3584 whether to impose consecutive or concurrent sentences.
United States v. Velasquez, 304 F.3d 237, 246 (3d Cir. 2002), cert. denied, 123 S. Ct. 1609
(2003). Velasquez repudiated the idea that a departure was necessary in order to deviate from the
rule imposed by section 5G1.2. The Third Circuit relied on the undesirability of allowing
charging decisions to affect the length of sentence to conclude that the district court properly
exercised its discretion to impose concurrent sentences, notwithstanding the contrary instruction
of section 5G1.2.

18
 IV.

Pressley next contends that the district court erred in holding that it had no

discretion to depart on the ground that Pressley's offense level overstated the

seriousness of his offense. Again, the first step in the departure process is

identifying the proposed ground for departure. Koon v. United States, 518 U.S.

81, 95 (1996).

Pressley offers the general ground that the offense level "overstates the

seriousness of his offense." Pressley relies on language from an application note

from an earlier version of the guidelines3 that appeared at U.S.S.G. § 2B1.1, n.

15(B) (Nov. 2001), the guideline for theft, embezzlement, receipt of stolen

property, property destruction, and offenses involving fraud or deceit, on the date

of the final resentencing hearings: "There may be cases in which the offense level

determined under this guideline substantially overstates the seriousness of the

3
Pressley cites U.S.S.G. § 2F1.1, comment. (n.8). Section 2F1.1 was deleted by
consolidation with section 2B1.1, effective November 1, 2001. See Supp. to Appendix C,
amendment 617. We are instructed to apply the version of the guidelines in effect on the date of
sentencing unless that would violate the ex post facto clause. See U.S.S.G. § 1B1.11 (2002).
This case does not appear to present any ex post facto clause violations. "The date of sentencing"
has been interpreted to mean the date of the sentencing hearing. United States v. Descent, 292
F.3d 703, 707 (11th Cir. 2002), cert. denied, 123 S. Ct. 913 (2003). Other circuits have held that
upon remand for resentencing, the court applies the version of the guidelines in effect at the date
of resentencing. United States v. Torres, 251 F.3d 138, 145 n.2 (3d Cir.), cert. denied, 534 U.S.
936 (2001); United States v. Young, 247 F.3d 1247, 1250 n. 4 (D.C. Cir. 2001). The final
resentencing hearings occurred in January 2002, when the November 2001 manual was in effect.
Therefore, we will use the November 2001 manual.

19
offense. In such cases, a downward departure may be warranted." Pressley argues

that drug cases are analogous to fraud cases, because in each the offense level is a

function of the magnitude of the crime, as measured by the amount of drugs or

monetary loss, respectively. Compare U.S.S.G. § 2D1.1 with § 2B1.1(b). He

contends that a downward departure should also be available where the offense

level determined by counting up the amount of drugs attributable to the defendant

substantially overstates the seriousness of the offense.

We must be very cautious in importing language from one guideline to

another. See United States v. Hernandez, 160 F.3d 661, 669 n.5 (11th Cir. 1998)

(analogizing only after careful comparison of guidelines indicated similar

context); United States v. Brennick, 134 F.3d 10, 15 (1st Cir. 1998) ("[P]rovisions

in one set of guidelines cannot normally be transferred to another separate set of

guidelines."). The language in the commentary to the theft, embezzlement and

fraud guideline was drafted to address considerations peculiar to the economic

crimes covered in section 2B1.1. The drug guidelines specifically mention several

ways in which the drug amount might not adequately reflect the seriousness of the

crime. See § 2D1.1, comment. (n. 9) (high purity of drug might warrant upward

departure); comment. (n.1) (where drug mixed with extraneous material in a

sophisticated way to avoid detection, upward departure might be warranted); and

20
comment. (n.14) (downward departure could be warranted in a reverse sting where

government sold drugs to defendant below market price to increase amount of

drug involved in deal). Because the various guidelines are drafted to address

problems attendant on different types of crime, we are not convinced that we

should borrow from commentary in the theft, embezzlement and fraud guideline in

this drug case.

But even if we were to import language from the fraud guideline into the

drug offense guidelines, Pressley would gain no advantage. We might consider

the idea of "overstating seriousness" an encouraged ground, see United States v.

Corry, 206 F.3d 748, 751 (7th Cir. 2000) ("That the loss overstates the seriousness

of the offense is, to use Koon's terminology, an encouraged basis for departure."),

but we could not excuse Pressley from explaining why the guideline formula is

misleading in his case. The "overstating seriousness" language is "little more than

another way of saying that departures from the loss table may be warranted for

good cause." Brennick, 134 F.3d at 15 (emphasis in original). Once we identify

the proposed reasons for departure, even with an encouraged ground, we still must

determine whether the guidelines take the factor into account. Koon, 518 U.S. at

96. If the guidelines already take the factor into account, the court may depart

"only if the factor is present to an exceptional degree or in some other way makes

21
the case different form the ordinary case where the factor is present." Id.

All three reasons Pressley contends show the drug amount was misleading

have already been taken into account by the guidelines, and he presents no

evidence that they are present in an exceptional form or degree. He first argues

that the amount of the drugs attributable to him was exaggerated by the witnesses.

Deciding whether to believe the witnesses and what amounts of drugs their

testimony supports is part of the fact-finding process the district court must

perform in order to figure the offense level to begin with.4 The difficulty of

making credibility determinations is inherent in the district court's role as fact-

finder under the guidelines and cannot take one case outside the heartland without

opening the door to departures in all cases with disputed facts. If the evidence

does not support a finding of a fact by the preponderance of the evidence, the

proper course for the district court is to conclude that the fact was not proven,

rather than to find the fact and then depart downward because the finding was

unreliable. Cf. United States v. Meacham, 115 F.3d 1488, 1498 (10th Cir. 1997)

(reversing departure based on district court's doubts about credibility of evidence

the jury accepted); United States v. Haut, 107 F.3d 213, 218-23 (3d Cir. 1997)

4
Indeed, the record shows that in reckoning the offense level, the district court discounted
the drug amounts in order to account for its doubts about the credibility of the witnesses.

22
(same); United States v. Brooks, 966 F.2d 1500, 1505 (D. C. Cir. 1992) (affirming

district court's ruling that it could not depart downward based on weakness of case

that withstood motion for acquittal and on which jury returned guilty verdict).

Moreover, reconsideration of the drug amount was beyond the district

court's power in this case. Pressley had argued on his first appeal that the

determination of the drug amount in his case was clearly erroneous; this Court

held it was not. Pressley, slip op. at 3-4. That determination was the law of the

case when Pressley appeared before the district court for resentencing, and the

mandate rule would forbid premising a departure on the erroneousness of a finding

we had already said was not clearly erroneous. See United States v. Escobar-

Urrego, 110 F.3d 1556, 1561 (11th Cir. 1997). The district court correctly

determined that it was not permissible to depart on the ground that the amount

determination was faulty.

Next, Pressley argues that the quantity attributable to him overstates the

seriousness of his offense because the quantity is the aggregate of small amounts

possessed from time to time, rather than the amount that he possessed at any one

time. The district court concluded that discounting the drug quantity attributable

to the defendant because he did not possess a large quantity at one time would

contradict the guidelines' basic method of drug offense computation by

23
aggregating amounts. See § 2D1.1, comment. (n. 6) ("Where there are multiple

transactions . . . the quantities of drugs are to be added."). When a proposed

ground for departure would negate an aspect of the guidelines as written, the

proposed ground is deemed to have been adequately taken into account by the

Sentencing Commission.5 See United States v. Steele, 178 F.3d 1230, 1239 (11th

Cir. 1999) (abuse of discretion to depart on ground that would negate

enhancement provided by guidelines). The district court did not err in holding that

it was not authorized to depart on the ground that Pressley possessed the drugs

included in the calculation at various times, rather than all at once.6

5
More specifically, the history of section 2D1.1 shows that the Commission did consider
the circumstances under which drug quantity calculations might overstate the seriousness of the
defendant's conduct and it did not consider cases such as Pressley's appropriate for departure.
Amendment No. 485 added a note 16 to section 2D1.1, effective November 1, 1993, which
encouraged a departure when the court found that the offense level overrepresented the
defendant's culpability and various other criteria were met. Pressley would not have qualified for
the note 16 departure because he failed to meet several criteria. U.S.S.G. App. C. Note 16 (or
note 14 as it was renumbered) was eliminated in November 2001 by Amendment No. 624,
effective November 1, 2001, Supp. to App. C.
6
The Second Circuit, in United States v. Lara, 47 F.3d 60, 66-67 (2d Cir. 1995), affirmed
departures based on what it described as the "quantity/time factor," i.e., that selling small
amounts at many times is indicative of a lower level of culpability than selling a large amount at
once. Id. at 65. However, the Second Circuit considered offenses that were committed before
November 1, 1993, the effective date of Amendment No. 485, in which the Commission adopted
an encouraged ground of departure that could include consideration of the quantity/time factor.
The Second Circuit reasoned that the Commission considered the quantity/time factor for the
first time when it adopted Amendment No. 485, and that therefore the quantity/time factor had
not been taken into consideration at the time of Lara's offense. Id. at 66. Therefore, the Lara
departures were based on pre-Amendment No. 485 law and Lara's holding is not applicable to
post-Amendment No. 485 cases such as Pressley's. We have already noted that Pressley would
not have been eligible for a departure under Amendment No. 485. See note 5, supra.

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 As for Pressley's assertion that he was a "one-man band," the guidelines

take into account whether a defendant is a supervisor or manager of other

participants in the role in the offense sections. U.S.S.G. §§ 3B1.1, 3B1.2 (2001).

When the guidelines make the presence of a factor a basis for enhancement, then it

follows that the absence of that factor has been taken into account by the

Sentencing Commission in formulating the guidelines. See United States v.

Schlaen, 300 F.3d 1313, 1319 (11th Cir. 2002) (where guidelines provide

enhancement for sophisticated concealment, Sentencing Commission must be

deemed to have taken into account unsophisticated concealment), pet'n for cert.

filed, No. 02-11073 (June 2, 2003). Pressley received a two-point enhancement

for his aggravating role of organizing the beating of Stanley Moore in connection

with Pressley's cocaine distribution business. Whether or not it is possible to

receive an aggravating role adjustment and mitigating role adjustment in the same

case, the fact remains that the guidelines take role in the offense into account in

setting the sentencing range. Pressley has not shown any reason why the role in

the offense provisions of the guidelines fail to account for the small size of his

operation. Therefore, the district court did not err in holding that the Sentencing

Commission has already adequately accounted for the factor he urges, and a

section 5K2.0 departure is not available on this ground.

25
 V.

The district court held that conditions of presentence confinement could, in

an appropriate case, support a downward departure, but that the facts of Pressley's

case were not, as a matter of law, sufficient to support a departure in this case.

The district court was correct in holding that conditions of confinement could

provide a basis for departure, since this factor was apparently not taken into

account by the Sentencing Commission and could be unusual enough to take a

case out of the heartland of the applicable guideline. United States v. Carty, 264

F.3d 191, 196 (2d Cir. 2001) (per curiam). Cf. United States v. Dyck, 334 F.3d

736, 742-43 (8th Cir. 2003) (declining to decide whether conditions of

confinement can serve as a basis for departure); United States v. Stevens, 223 F.3d

239, 248 n.9 (3d Cir. 2000) (same); United States v. Cardenas, No. 02-3566, 2003

WL 21461824 (7th Cir. June 18, 2003) (unpublished) (question of whether pretrial

confinement can be basis for departure unresolved in Seventh Circuit).

The question of whether Pressley made a showing of adverse conditions of

presentence confinement that would have been sufficient to warrant a departure is

one for which little guidance exists. Of the Courts of Appeals, only the Second

Circuit has squarely held that conditions of confinement before sentencing

supported a departure. Carty, 264 F.3d at 196. There, Carty fled after pleading

26
guilty and before sentencing, and was caught and jailed in the Dominican

Republic, where he was kept in a four-foot by eight-foot cell with three or four

other prisoners, he had no light or running water in the cell, he lost forty pounds

while in detention, and he suffered various other inhumane conditions. Id. at 193.

The district court held that the conditions of Carty's confinement while awaiting

extradition would not, as a matter of law, support a departure. The Second Circuit

reversed, holding that "pre-sentence confinement conditions may in appropriate

cases be a permissible basis for downward departures." 264 F.3d at 196. In this

Circuit, one district court has granted a downward departure based on presentence

confinement conditions where a defendant was raped by a jailer. United States v.

Rodriguez, 213 F. Supp. 2d 1298, 1303, amended, 214 F. Supp. 2d 1239, 1241 (M.

D. Ala. 2002).7

On the other hand, in Dyck the Eighth Circuit reversed a departure for

conditions of presentence confinement where no evidence supported the

proposition "that the conditions at the Grand Forks County jail facility . . . were so

substandard or onerous as to take this case out of the heartland of cases." 334 F.3d

at 743. Similarly, in United States v. Brown, 95 F. Supp. 2d 277 (E.D. Pa. 2000),

7
Cf. United States v. Francis, 129 F. Supp. 2d 612, 614-20 (S.D.N.Y. 2001) (granting
downward departure where defendant in presentence custody for thirteen months in county
correctional center dominated by gangs, with various other security and hygienic inadequacies).

27
a district court stated that it understood it had discretion to depart for conditions of

confinement, but that the defendant did not present a "sufficient factual predicate"

for departure where the record revealed "crowding, poor food, noise, and an

inadequate legal library." Id. at 280. Accord United States v. Sutton, 973 F. Supp.

488, 494-95 (D.N.J. 1997) (holding that neither ten months' length of presentence

confinement nor criticism of recreational and food facilities at jail were

sufficiently atypical to take case out of heartland), aff'd, 156 F.3d 1226 (3d Cir.

1998) (table).

Pressley testified that he spent six years in presentence confinement, of

which five years were spent in USP Atlanta in 23-hour-a-day lockdown. He

testified that he had not been outside in five years. These facts are extraordinary,

both in the length of presentence confinement and in the conditions. We cannot

say that they are insufficient, as a matter of law, to support the two and a half year

downward departure the district court said it would consider appropriate if it had

the power so to depart.

We therefore REMAND for the district court to exercise its discretion as to

whether to depart on the ground of harshness of conditions of presentence

confinement. In all other respects, the sentence is AFFIRMED.

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