United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 21, 1999 Decided December 28, 1999
In re: Sealed Case No. 98-3116
Appeal from the United States District Court
for the District of Columbia
(No. 97cr00183-01)
Neil H. Jaffee, Assistant Federal Public Defender, argued
the cause for appellant. With him on the briefs was A. J.
Kramer, Federal Public Defender.
Alyse Graham, Assistant U.S. Attorney, argued the cause
for appellee. With her on the brief were Wilma A. Lewis,
U.S. Attorney, and John R. Fisher, Mary-Patrice Brown and
Diana Harris Epps, Assistant U.S. Attorneys.
Before: Silberman, Sentelle and Rogers, Circuit Judges.
Opinion for the court filed by Circuit Judge Sentelle.
Dissenting opinion filed by Circuit Judge Rogers.
Sentelle, Circuit Judge: In 1997, appellant pleaded guilty
in the United States District Court to several counts of
cocaine possession and distribution in violation of 21 U.S.C.
s 841(a)(1) and (b)(1)(C). At sentencing, the trial court ran
all sentences on all counts concurrently and sentenced appel-
lant to 151 months. On appeal, appellant seeks a remand for
resentencing on the basis that the District Judge was un-
aware of his authority under s 4A1.3 of the United States
Sentencing Guidelines Manual ("Guidelines") to order a down-
ward departure from the career offender guideline range
assigned to appellant. While the judge's discourse on the
matter was less than clear, we hold that his comments should
not be interpreted as reflecting the view that he had no legal
authority to depart. Therefore, we affirm.
I. Background
On May 2, 1997, appellant pleaded guilty to one count of
unlawful possession with intent to distribute cocaine and six
counts of unlawful distribution of cocaine in violation of 21
U.S.C. s 841(a)(1) and (b)(1)(C). Based on the drug quantity
involved, the Presentence Report ("PSR") set the Guideline
base offense level at eighteen. Since appellant had been
convicted of two prior felony drug offenses, she qualified as a
career offender under s 4B1.1 and thus her offense level was
raised to thirty-two. However, her offense level was reduced
by three for acceptance of responsibility. Therefore, her final
offense level totaled twenty-nine.
Regarding appellant's two prior offenses, the PSR showed
that (1) the two offenses were committed within months of
each other; (2) the offenses occurred almost ten years prior
to the instant offenses; (3) the offenses involved very small
quantities of drugs; (4) appellant received a probationary
sentence on her second conviction; (5) appellant successfully
completed her parole and probation; (6) appellant sold drugs
to support her addiction rather than for financial gain; and
(7) appellant led a conviction-free and productive life during
the ten year period between her prior offenses and instant
offenses. Had appellant not been deemed a career offender,
her total offense level would have been fifteen (base eighteen
less three for acceptance of responsibility) and her sentencing
range would have been twenty-four to thirty months. How-
ever, since the court ruled that appellant's two prior convic-
tions qualified her as a career offender, her sentencing range
was 151-188 months.
Prior to sentencing, defense counsel filed objections to the
PSR. Counsel objected to the career offender adjustment on
the grounds that it did not "accurately reflect [appellant's]
criminal history, but artificially inflate[d] her record and
offense level." The probation officer rejected counsel's char-
acterization in an addendum to the PSR. In making his
objections, defense counsel did not raise any grounds for
departure specifically under s 4A1.3, the Guideline provision
cited on appeal, which allows for a sentencing departure when
"the court concludes that a defendant's criminal history cate-
gory significantly over-represents the seriousness of a defen-
dant's criminal history or the likelihood that the defendant
will commit further crimes." U.S. Sentencing Guidelines
Manual s 4A1.3 (1998).
At the sentencing hearing, the trial judge stated that he
"tentatively" agreed with the PSR. The judge also stated
that he was "tentatively" inclined to impose a sentence at the
bottom of the Guideline range and to run all sentences on all
counts concurrently. Defense counsel complained about the
harshness of the sentencing range in light of various mitigat-
ing factors, including appellant's age, drug addiction, period
of drug abstinence and gainful employment, and educational
background. In response, the judge stated:
I wish that there was some way I could give her a
sentence less than the guidelines call for. I am going to
sentence her at the bottom of the guidelines, but I am
convinced that she needs a long period of abstinence and
the treatment that she can get in the federal system.
After defense counsel reiterated his objection to the length of
the sentencing range, the judge responded, "I don't have any
alternative." The court proceeded to sentence appellant to
151 months, running all counts concurrently in order to reach
the bottom of the applicable range.
On appeal, appellant argues that her case must be remand-
ed for resentencing since the sentencing judge was unaware
that he had authority under s 4A1.3 to order a downward
departure from the career offender guideline range on the
grounds that appellant's criminal history significantly overre-
presented the seriousness of her prior convictions and the
likelihood she would commit future crimes. For the reasons
set forth more fully below, we reject appellant's contention
that the judge misunderstood his sentencing authority.
II. Discussion
A defendant can appeal a sentence issued under the Guide-
lines only if the sentence "(1) was imposed in violation of law;
(2) was imposed as a result of an incorrect application of the
sentencing guidelines; or (3) is greater than the sentence
specified in the applicable guideline range...." 18 U.S.C.
s 3742(a) (1994). Here, appellant argues that the District
Judge, as evidenced by certain statements in the record, was
not aware that he could enter a departure under s 4A1.3.
While this court will review a District Judge's refusal to
depart downward if the judge misconstrued his statutory
authority to depart, see, e.g., United States v. Beckham, 968
F.2d 47, 49, 53 (D.C. Cir. 1992); United States v. Ortez, 902
F.2d 61, 64 (D.C. Cir. 1990), we conclude that the District
Judge's comments during the sentencing hearing did not
amount to an assertion that he lacked the legal authority to
depart, especially as his comments were made in response to
defense counsel's general request for leniency and not in
response to a specific request for departure.
Although appellant's counsel filed written objections to the
criminal history guideline calculations contained in the PSR,
he did not specifically request a s 4A1.3 departure prior to
sentencing. In his letter, counsel objected on the grounds
that appellant's prior convictions did "not accurately reflect
her criminal history, but artificially inflate[d] her record and
offense level" because the two prior convictions should not
have been considered separately under s 4B1.2. Specifically,
counsel argued that "[t]he predicate offenses for which [the
probation officer] found defendant to be a 'career offender'
were 'related' according to s 4B1.2, Note 4 of the Sentencing
Guidelines ... and therefore [the predicate offenses] should
not be considered two separate and unrelated felonies pursu-
ant to s 4B1.2, Note 4." However, counsel's written objec-
tion does not aid appellant's current position since the objec-
tion pertained to the relatedness of the prior offenses and did
not touch upon s 4A1.3 departure authority. Moreover,
counsel never specifically argued for departure at the sen-
tencing hearing. Instead, counsel essentially asked the judge
for leniency when assigning the sentence.
Since counsel never specifically argued for this departure
from the appropriate guideline range before or during the
sentencing hearing, the District Judge's comments regarding
his sentencing authority must be evaluated in that context.
The First Circuit considered a similar record in United States
v. DeCosta, 37 F.3d 5, 8 (1st Cir. 1994). In that case, the
circuit court observed that a district court often "simply
asserts that it 'cannot' or 'is without authority' to depart."
Id. That circuit observed that a district court making such
an observation may be expressing the thought that it "can-
not" depart because it lacks legal authority under the Guide-
lines, or simply "that it 'cannot' depart" because it has
"weighed the factors urged and found that they do not
distinguish the case from the mine run of cases." Id. In
adopting the later view of the case before it and dismissing
the improvident appeal, that circuit noted that the failure of
the district court under review to discuss the factors as to
which the appellant thought it lacked understanding were
easily explained by the failure of the defense counsel at
sentencing to explicitly urge those factors as a basis for
departure. Just so here.
Thus, the critical question on appeal is whether the record
establishes that the district court judge misunderstood his
departure authority. See Ortez, 902 F.2d at 64. Granted, the
judge stated that he "wish[ed]" he could have sentenced
appellant below the guideline range but concluded that he did
not "have any alternative." However, the language used by
the judge is the kind of language that sentencing judges have
always used, even in the days of judicial sentencing discretion
unbridled by the Guidelines, to mean that the judge could not
in good conscience or with good judgment give as lenient a
sentence as requested by defense counsel. See United States
v. Smith, 27 F.3d 649, 665 (D.C. Cir. 1994) (Sentelle, J.,
dissenting) ("Sentencing judge[s] ... typically said something
like, 'Counsel, I'd like to give your client a lenient sentence,
but I just can't see any basis for it.' "). In making such a
statement, the judge does not mean that he could not lawfully
give the defendant a lenient sentence but rather that he
cannot do so in good conscience. Here, the District Judge's
statements are in accord with a sentencing judge's attempt to
"soften the blow" prior to his meting out justice. However,
we want to stress that sentencing judges should avoid using
the ambiguous language that gives rise to appeals like the one
before us. Justice is better served through clarity on the
record.
Our dissenting colleague charges that by upholding the
District Judge's decision on a record that contains ambiguity,
we somehow "abdicate[ ] our responsibility to determine our
own jurisdiction," and that our decision "is potentially un-
just." Dissent at 4-5. Of course, any decision is potentially
unjust. So far as abdicating our responsibility, however, it is
not clear to us how we do anything other than choose a
different decision than the one chosen by our colleague who,
we would hold, has applied the wrong standard of review.
Her chosen standard which finds reversible error on ambigui-
ty in the district court record where the ground of error
asserted on appeal was never raised is, on its face, inconsis-
tent first with United States v. Pinnick, 47 F.3d 434 (D.C.
Cir. 1995), wherein we held that a district judge's refusal to
depart without explanation was unreviewable where the ap-
pellant had not afforded the district court with the opportuni-
ty and occasion to explain on the record. As we held there,
"[u]nder these circumstances, we assume 'that the district
court kn[ew] and applie[d] the law correctly.' " Id. at 439
(quoting United States v. Garcia-Garcia, 927 F.2d 489, 491
(9th Cir. 1991)). Concededly, Pinnick involved a case with no
objection rather than one like the present where a different
objection was made, but it is not apparent from our col-
league's dissent why a different rule should apply. Secondly,
if a different rule does apply, then it would seem that at best,
the waived objection should be reviewed for plain error. See
United States v. Albritton, 75 F.3d 709, 712 (D.C. Cir. 1996).
To hold, as our colleague does, that a record at worst
ambiguous supports reversal is hardly consistent with plain
error review. Finally, the searching review that reverses for
an error not raised below on an ambiguous record is inconsis-
tent with the governing statute. In adopting Guideline sen-
tencing in the first place, Congress dictated that "[t]he court
of appeals shall ... give due deference to the district court's
application of the guidelines to the facts." 18 U.S.C.
s 3742(e). Our colleague's approach gives no deference at
all, in derogation of the obvious congressional desire to afford
stability and presumptive regularity to sentencing under the
Guidelines.
We further cannot agree with our colleague's styling of the
recorded colloquy between the court and the defendant as
"appear[ing] only to be consistent with the district court's
view that it was bound to sentence the defendant within the
Guideline range as enhanced by the career offender provi-
sion." Dissent at 3. Indeed, in explaining his sentence, the
District Judge stated, "I wish that there was some way I
could give her a sentence less than the Guidelines call for. I
am going to sentence her at the bottom of the Guidelines, but
I am convinced that she needs a long period of abstinence and
the treatment that she can get in the federal system." Un-
less the court was aware that he did have some possibility of
discretion, the second of the quoted sentences is unexplaina-
ble. If the district court misapprehended its authority, such
misapprehension is not apparent from the record. Guidelines
sentencing was intended by Congress to create stability and
presumptive regularity in sentencing, not to provide appellate
courts a chance to reverse on ambiguous records in which the
defense afforded the trial court no opportunity to pass on the
question asserted on appeal.
Conclusion
Reviewing the subject matter of defense counsel's objection
to the PSR and his generalized pleas for leniency at the
hearing together with the language used by the District
Judge, we cannot conclude that the judge expressed the view
that he had no legal authority to depart under the Guidelines.
The record demonstrates that the District Judge exercised
discretion rather than failed to consider his authority. As we
noted above, we have jurisdiction to review defense appeals
from sentencing only if the sentence "(1) was imposed in
violation of law; (2) was imposed as a result of an incorrect
application of the sentencing guidelines; or (3) is greater than
the sentence specified in the applicable guideline range...."
18 U.S.C. s 3742(a). As this appeal falls in none of those
categories, the appeal is hereby dismissed.
Rogers, Circuit Judge, dissenting: Although the court
labors to palliate the district court's statements, the effort
contravenes our precedent calling for a remand in circum-
stances such as these. The district judge stated "I don't have
any alternative" in response to defense counsel's argument
for a reduced sentence because the criminal history category
overstated the defendant's criminal history and because she
had a low likelihood of recidivism. Under unambiguous
circuit precedent, the district court had the "alternative" of
considering a downward departure under s 4A1.3. Because
the record is at best unclear as to whether the district court
was aware of its authority to depart, a remand is required.
See United States v. Beckham, 968 F.2d 47, 54-55 (D.C. Cir.
1992); United States v. Saro, 24 F.3d 283, 287-88 (D.C. Cir.
1994).
As the court recognizes, along with every other circuit that
has addressed the issue, this circuit has held that s 4A1.3
authorizes a downward departure when criminal history cate-
gory VI, assigned pursuant to the career criminal offender
guideline, significantly overrepresents the seriousness of the
defendant's past criminal conduct.1 In Beckham, the defen-
dant's sentence was tripled to 30 years to life because he had
been classified as a career offender on the basis of two prior
convictions, one for attempted possession with intent to dis-
tribute cocaine in 1988 and the other for armed robbery in
1975. The district court had rejected defense arguments that
the defendant's youth, family responsibilities, contrition, and
the grossly disproportionate nature of the penalty provided
authority to depart; defense counsel "complained about the
harshness of his sentence in general terms, but he disclaimed
knowledge of any specific authority in the Guidelines for
departing downward based on a mismatch between his sen-
__________
1 See, e.g., United States v. Spencer, 25 F.3d 1105, 1112-13
(D.C. Cir. 1994); United States v. Clark, 8 F.3d 839, 843 (D.C. Cir.
1993); Beckham, 968 F.2d at 54; see also United States v. Webb,
139 F.3d 1390, 1395 (11th Cir. 1998); United States v. Lindia, 82
F.3d 1154, 1165 (1st Cir. 1996); United States v. Rivers, 50 F.3d
1126, 1131 (2d Cir. 1995); United States v. Shoupe, 35 F.3d 835,
838-39 (3d Cir. 1994); United States v. Bowser, 941 F.2d 1019, 1023
(10th Cir. 1991); United States v. Adkins, 937 F.2d 947, 952 (4th
Cir. 1991); United States v. Lawrence, 916 F.2d 553, 554-55 (9th
tence and the seriousness of his misdeeds." Id. at 53. The
district court had observed that the sentence was harsh and
excessive but stated that it lacked any discretion in the
matter because "Congress and the Sentencing Commission
have taken that away from me." Id. This court, while noting
the narrow scope of the departure authority granted by
s 4A1.3, nevertheless remanded the case for resentencing
"because the district court was unaware that s 4A1.3 might
provide authority for a downward departure in a case like
Beckham's...." Id. at 55. Decisions from other circuits
likewise confirm the appropriateness of a remand to clarify
similar ambiguities at sentencing.2
The district court's language in the instant case is not as
expansive as it was in Beckham. The relevant portion of the
colloquy is as follows:
THE COURT: I wish that there was some way I could
give [the defendant] a sentence less than the Guidelines
call for. I am going to sentence [the defendant] at the
bottom of the Guidelines, but I am convinced that she
needs a long period of abstinence [from drug use] and
the treatment that [the defendant] can get in the federal
system.
[DEFENSE COUNSEL]: .... [After contending that
there is a low likelihood of recidivism] [W]hile I concur
with the Court that [the defendant] needs a lengthy or
[the defendant] needs some period of incarceration with a
program, I would not ask that it be lengthy. The bottom
end of the Guidelines are going to put [the defendant] up
at twelve or thirteen years.
THE COURT: I don't have any alternative.
__________
Cir. 1990); United States v. Brown, 985 F.2d 478, 482 (8th Cir.
1990).
2 For example, in United States v. Webb, 139 F.3d 1390 (11th
Cir. 1998), even after the district court concurred with the Assistant
United States Attorney's attempt "to make sure the record is clear
the court recognizes it has the authority to downwardly depart but
chose not to do so," id. at 1392, the Eleventh Circuit concluded that
the record was ambiguous and a remand was required. Id. at 1395.
To the same effect is United States v. Brown, 903 F.2d 540, 544-45
(8th Cir. 1990).
This colloquy and the district court's subsequent colloquy
with defense counsel appear only to be consistent with the
district court's view that it was bound to sentence the defen-
dant within the Guideline range as enhanced by the career
offender provision. This is not a case in which the district
court rejected a possible downward departure because it had
determined that the defendant's case was not one of the
exceptional cases that would fall within a downward depar-
ture provision of the Guidelines. Instead, the district court
used absolute language--"I don't have any alternative"--in
denying sentencing relief other than to sentence at the low
end of the range without a downward departure. When
viewed in context, the district court's statement does not
permit this court to conclude that the district court meant
either that in good conscience it had no alternative or that it
understood it had discretion under s 4A1.3 and chose not to
exercise it.3 That the district court also was interested in
assuring that the defendant had a long period of incarceration
in order to end her dependancy on drugs is not inconsistent
with a sentence that could be imposed after departing down-
ward, cf. Brown, 903 F.2d at 544, and the government does
not argue to the contrary.
__________
3 While the court is correct in noting that there are some cases
in which a district court's claimed inability to depart reflects a
recognition of departure authority accompanied by a judgment that
the facts are insufficiently unusual to trigger exercise of that
authority, this is not such a case. Here, the district court gave
every indication that it considered this to be a case worthy of a
departure but that it saw no route available to reach that result.
For this reason, the government's reliance on United States v.
Shark, 51 F.3d 1072, 1077 (D.C. Cir. 1995) (per curiam), is unavail-
ing because the court there found no ambiguity in the district
court's statement that it had no "leeway" to reduce a career
offender's sentence under s 4A1.3 once the district court had
rejected the defendant's arguments in support of his departure
motion. Similarly, the court's analogy to United States v. DeCosta,
37 F.3d 5 (1st Cir. 1994), goes astray. In DeCosta, the district
court sought briefing on its departure authority and expressed so
clear an understanding of its authority that its subsequent refer-
Moreover, viewing the record as the court does, its conces-
sion that the record is "ambiguous," see Majority Opinion
("Maj. Op.") at 7, as to whether the district court recognized
at the time it sentenced the defendant that s 4A1.3 "might
provide authority for a downward departure" cannot be rec-
onciled with its decision not to remand this case. Until today,
the court had followed or acted consistently with the majority
rule: "[i]f it cannot be determined whether the sentencing
court exercised its discretion or wrongly believed it could not
depart, the case will be remanded." Jefri Wood, Federal
Judicial Center, Guideline Sentencing: An Outline of Appel-
late Case Law On Selected Issues 303 (1998).4 However, two
circuits have evinced a willingness to depart from this rule.
See United States v. Fortier, 180 F.3d 1217, 1231 (10th Cir.
1999); see also United States v. Byrd, 53 F.3d 144, 145 (6th
Cir. 1995). By essentially adopting the minority view as its
holding, the court misconceives the inquiry. The court recog-
nizes that our jurisdiction in this case turns on the merits,
that is, whether "the record establishes that the district court
judge misunderstood his departure authority." See Maj. Op.
at 5. But where the record is ambiguous, this court is unable
to determine whether the district court's decision is reviewa-
ble legal error or an unreviewable exercise of discretion. A
rule that resolves the ambiguity against the defendant abdi-
__________
ence to lacking the "discretion" to depart did not create an ambigui-
ty. Id. at 8.
4 See, e.g., United States v. Spencer, 25 F.3d 1105, 1113 (D.C.
Cir. 1994); Beckham, 968 F.2d at 53; United States v. Barry, 938
F.2d 1327, 1330-32 (D.C. Cir. 1991); United States v. Baskin, 886
F.2d 383, 389-90 (D.C. Cir. 1989); cf. United States v. Harris, 959
F.2d 246, 264-65 (D.C. Cir. 1992); United States v. Molina, 952
F.2d 514, 520 (D.C. Cir. 1992); United States v. Lopez, 938 F.2d
1293, 1298 (D.C. Cir. 1991) (citing United States v. Deigert, 916 F.2d
916, 918-19 (4th Cir. 1990)); United States v. Lyons, 706 F.2d 321,
335 & n.25 (D.C. Cir. 1983). For cases from other circuits, see, e.g.,
United States v. Webb, 139 F.3d 1390, 1395 (11th Cir. 1998); United
States v. Mummert, 34 F.3d 201, 205 (3d Cir. 1994); United States
v. Brown, 985 F.2d 478, 491 (9th Cir. 1993); United States v.
Ritchey, 949 F.2d 61, 63 (2d Cir. 1991); United States v. Deigert,
916 F.2d 916, 919 (4th Cir. 1990); see also United States v. Ramos-
Oseguera, 120 F.3d 1028, 1040-41 (9th Cir. 1997), cert. denied, 118
S. Ct. 1094 (1998).
cates our responsibility to determine our own jurisdiction and
is potentially unjust: "a defendant whose departure request
is rejected with an ambiguous ruling based on legal grounds
would apparently be deprived of the appellate review to which
he is statutorily entitled." Mummert, 34 F.3d at 205 n.2;
accord United States v. Clark, 128 F.3d 122, 124 (2d Cir.
1997); cf. Koon v. United States, 518 U.S. 81, 100 (1996);
United States v. Leandre, 132 F.3d 796, 800 (D.C. Cir. 1998).
The court mischaracterizes the majority rule as one that
treats ambiguity as "reversible error." Maj. Op. at 6. Rath-
er, the rule is designed to aid the court's jurisdictional inquiry
by allowing the district court to clarify on resentencing
whether its decision not to depart falls into the class of such
decisions subject to our review under 18 U.S.C. s 3742.
Contrary to the court's statement, our prior decisions have
recognized that a remand to clarify an ambiguous record is
consistent with our decision in United States v. Pinnick, 47
F.3d 434 (D.C. Cir. 1995), which presumes, in the absence of
record evidence indicating otherwise, that a district court's
refusal to depart is for discretionary reasons. See, e.g.,
United States v. Graham, 83 F.3d 1466, 1481 (D.C. Cir. 1996);
see also United States v. Chase, 174 F.3d 1193, 1195 (11th Cir.
1999). The instant case falls outside the Pinnick presumption
because the district court's statement--"I don't have any
alternative"--is precisely the sort of record evidence that
raises an ambiguity about the district court's grounds for
decision, triggering application of the rule requiring a re-
mand.
An additionally troubling aspect to the court's resolution of
the ambiguity is its assumption that the district court was
insincere when expressing its "wish that there was some way
[it] could give [the defendant] a sentence less than the
Guidelines call for." Maj. Op. 3. Even assuming that this
language could be understood to have been intended only to
"soften the blow," it is at least equally possible that the
district court meant what it said. By resolving this ambiguity
against the defendant, the court also deprives the district
court of the opportunity to consider and explain clearly
whether a departure under s 4A1.3 was warranted in the
instant case. Cf. United States v. Rivers, 50 F.3d 1126, 1132
(2d Cir. 1995).
Of course counsel share some responsibility for any ambi-
guity in the record. Directing the district court's attention to
the precise relief sought under the specific Guideline would
avoid future ambiguity. Not only could defense counsel have
been more specific, the prosecutor also could have sought
clarification of the district court's ruling. But after Beckham,
it is clear that no magic words are required, not even the
invocation of the phrase "downward departure." In Beck-
ham, defense counsel's arguments for a lesser sentence were
unavailing. So too, here, counsel's argument that the defen-
dant's two prior convictions should be viewed as related was
unavailing. In Beckham, defense counsel neither referred to
s 4A1.3 nor, as here, invoked language of its commentary.
Indeed, defense counsel in Beckham disclaimed the possibility
of other relief under the Guidelines.
Still, counsel's argument here adequately preserved the
defendant's right to review. Counsel objected to application
of the career offender enhancement because Criminal History
Category VI "do[es] not accurately reflect the defendant's
actual criminal history but artificially inflate[s] her record and
offense level." Elaborating that the career offender provision
did not apply because the defendant's two prior drug convic-
tions should be treated as related, counsel's invocation of
"artificial[ ] inflat[ion]" of the defendant's criminal record
closely tracks s 4A1.3's authorization of a departure when the
"defendant's criminal history category significantly over-
represents the seriousness of a defendant's criminal histo-
ry...." U.S. Sentencing Guidelines Manual s 4A1.3 (1997).
While admittedly inartful, defense counsel's objection suffi-
ciently placed the district court on notice that resort to its
discretion under s 4A1.3 was being sought. Nothing like this
happened in Pinnick, 47 F.3d at 439, where counsel failed to
object at all to the district court's denial of his request for a
departure. If defense counsel's argument here had been
limited to whether the career offender provision could be
applied to the defendant as a matter of law, counsel's objec-
tion to Category VI failing to "accurately reflect" the defen-
dant's true criminal history would have been irrelevant. Cf.
DeCosta, 37 F.3d at 8. Similarly, defense counsel raised the
other ground for a s 4A1.3 departure--the unlikelihood of
recidivism--when arguing that the bottom of the Guidelines
range was too long. In the absence of s 4A1.3, that argu-
ment also would have been irrelevant.5 Thus, even in the
absence of our decision in Beckham, defense counsel's argu-
ment was sufficient to alert the district court that a down-
ward departure was being requested.
Had the defendant waived her objection to the district
court's failure to depart, I would agree with the court that
plain error review remains for a waived objection. Maj. Op.
at 6; see United States v. Albritton, 75 F.3d 709, 714 (D.C.
Cir. 1996) (Rogers, J., concurring). But the court fails to
heed the instruction in Saro that in matters of sentencing,
even under plain error review, it is important to be certain
that the district court understood its authority and, as appro-
priate, exercised its discretion under that authority. 24 F.3d
at 288. Where a district court states that it has no alterna-
tive to imposing the lowest sentence based on a criminal
history category VI, in response to defense counsel's argu-
ment for a sentence that does not so overstate the defendant's
prior criminal record, this court needs to be clear that the
district court understood that s 4A1.3 "might provide author-
ity" for a lesser sentence. Beckham, 968 F.2d at 55. Accord-
ingly, because the systemic costs of a remand for resentenc-
ing do not outweigh (and the government does not argue to
the contrary) the criminal justice system's interest in assur-
ing correct application of the Guidelines, I would remand the
case in accord with circuit precedent to allow the district
court to consider whether to grant a downward departure
under s 4A1.3.
__________
5 The court characterizes counsel's argument against the low
end of the guideline range as a plea for "leniency," Maj. Op. at 4,
without acknowledging that because the district court had previous-
ly announced its intent to sentence at the low end of the range the
only possible exercise of leniency left to the court would have been a
downward departure under s 4A1.3.