United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 14, 2002 Decided April 26, 2002
No. 01-3039
United States of America,
Appellee
v.
Donald Ray Draffin,
Appellant
Appeal from the United States District Court
for the District of Columbia
(No. 97cr00391-01)
Sean Grimsley, Assistant Federal Public Defender, argued
the cause for the appellant. A. J. Kramer, Federal Public
Defender, was on brief. Gregory L. Poe, Assistant Federal
Public Defender, entered an appearance.
Matthew P. Cohen, Assistant United States Attorney, ar-
gued the cause for the appellee. Roscoe C. Howard, Jr.,
United States Attorney, and John R. Fisher, Assistant Unit-
ed States Attorney, were on brief.
Before: Henderson and Garland, Circuit Judges, and
Williams, Senior Circuit Judge.
Opinion for the court filed by Circuit Judge Henderson.
Karen LeCraft Henderson, Circuit Judge: Donald Ray
Draffin appeals his sentence on the ground that the district
court erred in not departing from the sentencing range
mandated by the career offender provisions of the United
States Sentencing Guidelines (Guidelines). Under circuit pre-
cedent, because Draffin did not request the departure below,
the failure to depart is either not reviewable or, at most,
reviewable for plain error only. We conclude that the district
court's failure to grant an unrequested departure should be
reviewed for plain error and that Draffin has demonstrated
none. Accordingly, his sentence is affirmed.
I.
On September 25, 1997 Draffin was indicted on one count
of bank robbery in violation of 18 U.S.C. s 2113(a), to which
he pleaded guilty on November 20, 1997. On April 5, 2001
the district court sentenced Draffin as a career offender
under U.S.S.G. s 4B1.11 to 151 months' imprisonment,2 con-
secutive to an unrelated felony sentence and to be followed by
three years' supervised release, and imposed a $100 special
assessment. Draffin appeals his sentence.
II.
In sentencing Draffin, the district court rejected his con-
tentions that the government had failed to prove that the
__________
1 Section 4B1.1 enhances the sentence of a career offender, that
is, a defendant whose offense of conviction is at least his third adult
felony conviction of a crime of violence and/or a controlled sub-
stance offense.
2 This sentence is at the bottom of the sentencing range of 151-
188 months the court below found applicable to Draffin as a career
offender with an offense level of 29 and a criminal history of VI.
robbery fit the definition of "crime of violence" set out in
U.S.S.G. s 4B1.2, that the court should depart from the
career offender provisions of the Guidelines based on dimin-
ished capacity pursuant to U.S.S.G. s 5K2.13 and that the
sentence should be concurrent with the other felony sentence.
On appeal Draffin does not urge any of the arguments raised
below but asserts instead that the district court should have
departed under U.S.S.G. s 4A1.3 either because the offense
of conviction should not be considered a crime of violence3 or
because the career criminal status overstates Draffin's crimi-
nal history and likelihood of recidivism. Before addressing
the merits of his claim we must determine the appropriate
__________
3 This court acknowledged such a departure ground, at least
where the violent nature of previous crimes is challenged, in United
States v. Baskin, 886 F.2d 383 (D.C. Cir. 1989), cert. denied, 494
U.S. 1089 (1990):
A sentencing judge retains discretion to examine the facts of a
predicate crime to determine whether it was a crime of violence
notwithstanding the Commentary to the guidelines' predeter-
mined list of crimes which it considers to be crimes of violence.
Obviously, the guidelines' definitions, commentary and the like
provide a solid starting point for determining whether a prior
conviction was in fact a crime of violence. However, it may be
appropriate, as provided by the guidelines, for a district judge
to depart from the guidelines' statutory definition of a particu-
lar crime depending on the facts of the case. We remand for
reconsideration of the defendant's previous robbery conviction
to determine whether or not it was in fact a crime of violence
under 18 U.S.C. s 16(a).
886 F.2d at 389-90; see also United States v. Chatman, 986 F.2d
1446, 1453 n.7 (D.C. Cir. 1993). We subsequently clarified that this
authority to depart arises under U.S.S.G. s 4A1.3, which authorizes
departure "if reliable information indicates that the criminal history
category does not adequately reflect the seriousness of the defen-
dant's past criminal conduct or the likelihood that the defendant will
commit other crimes." See United States v. Beckham, 968 F.2d 47,
54 (D.C. Cir. 1992); United States v. Clark. 8 F.3d 839, 843 (D.C.
Cir. 1993). We need not and do not decide here whether the
departure ground applies to the offense of conviction as well as to
earlier crimes.
scope of our review. Because the level of review depends on
whether Draffin has preserved his departure argument for
appeal, we must first determine whether, as Draffin main-
tains, he adequately presented the argument to the district
court. We conclude he did not.
The record below reveals that Draffin at no time asked the
district court to depart based on the specific grounds he now
cites. It is true he argued the offense of conviction is not one
of violence but he did so within the confines of the Guidelines,
asserting the offense does not fit within the Guidelines'
definition of "crime of violence." He did not claim that
characterizing the robbery as a crime of violence "so distorted
the sentence as to take it out of the Guidelines' heartland"
and therefore to justify departing from the Guidelines sen-
tencing range. See United States v. Vizcaino, 202 F.3d 345,
348 (D.C. Cir. 2000). We therefore review Draffin's sentence
pursuant to our precedent governing unrequested departures.
As a general rule, the sentencing court's failure to depart
"is reviewable ... if it rests on a misconstruction of its
authority to depart" but the "court's discretionary decision
that the particular circumstances of a given case do not
warrant a departure ... is not reviewable." United States v.
Pinnick, 47 F.3d 434, 439 (D.C. Cir. 1995) (quotation omitted).
Accordingly, some of our decisions have reasoned that, when
a defendant does not raise a departure argument before the
sentencing court, the court's consequently unexplained failure
to depart is as unreviewable as an expressed discretionary
decision not to depart. See United States v. Bradshaw, 935
F.2d 295, 303 (D.C. Cir. 1991) (defendant who did not "press
that specific argument before the district court" failed to
preserve assertion "it was error for the district court to fail to
determine whether his prior robberies were actually crimes of
violence justifying a career offender designation"); United
States v. Foster, 988 F.2d 206, 209 (D.C. Cir. 1993) (failure to
depart either "not reviewable" or "waived" where "record
does not support the assertion that appellant ever made a
request for a section 4A1.3 departure" and "[a]ppellant does
not even allege that the trial judge misconstrued his legal
authority to depart"); United States v. Pinnick, 47 F.3d at
439-40 (failure to depart "not reviewable" because defendant
did not object after court "imposed sentence without com-
menting on the departure request"); In re Sealed Case, 199
F.3d 488 490-92 (D.C. Cir. 1999) (Sealed Case I) (no review
where defense "never specifically argued for ... departure
from the appropriate Guideline range before or during the
sentencing hearing") (citing Pinnick). In apparent contrast,
other decisions have concluded the failure to grant an unre-
quested departure should be reviewable for plain error. See
United States v. Klat, 156 F.3d 1258, 1267 (D.C. Cir. 1998)
(where "appellant failed to request a downward departure
under section 5K2.13," court "review[s] the district court's
failure, sua sponte, to depart downward on the basis of
appellant's diminished capacity under plain error"); In re
Sealed Case, 204 F.3d 1170, 1171-72 (D.C. Cir. 2000) (plain
error applies where defendant "never argued [the asserted
departure ground] to the district court" and therefore "the
issue of whether the district court had authority to depart [on
that ground] was never presented in the district court"). Still
other cases have reviewed for plain error without expressly
deciding which standard should apply. See United States v.
Albritton, 75 F.3d 709, 712 (D.C. Cir. 1996) ("[a]ssuming,
without deciding" that plain error applies to "district court's
failure to grant sua sponte a section 5K2.0 departure");
United States v. Vizcaino, 202 F.3d 345, 348 (D.C. Cir. 2000)
("Because Vizcaino failed to preserve the argument for ap-
peal, we review the district court's failure to depart sua
sponte at most for plain error."); cf. Sealed Case I, 199 F.3d
at 491("[I]f a different rule does apply, then it would seem
that at best, the waived objection should be reviewed for plain
error."). We believe the correct standard is plain error.
The cited caselaw is not so inconsistent as it may seem. As
a practical matter, denying review of the failure to depart sua
sponte and reviewing it for plain error will ordinarily yield
the same result: the sentence will be upheld. Although the
plain error standard appears more lenient than no review at
all, it is, as the decisions cited above make manifest, almost
impossible to satisfy in the departure setting.
To establish plain error an appellant must show that "from
the perspective of the trial court, the claimed error was 'so
"plain" the trial judge and prosecutor were derelict in counte-
nancing it, even absent the defendant's timely assistance in
detecting it.' " United States v. Saro, 24 F.3d 283, 286 (D.C.
Cir. 1994) (quoting United States v. Frady, 456 U.S. 152, 163
(1982)) (other citations omitted). Ordinarily, such error will
not be found where the lawyer fails to propose a discretionary
departure ground because " '[u]nder these circumstances, we
assume that the district court kn[ew] and applie[d] the law
correctly.' " Sealed Case I, 199 F.3d at 491 (quoting Pinnick,
47 F.3d at 439-40) (quotation omitted); see also Pinnick, 47
F.3d at 439 ("[T]he appellant, not us, has the initial responsi-
bility to ensure that the district court explains its reasoning
for the record."). We have, however, recognized one unlikely
circumstance--and there may conceivably be others--in
which plain error might be shown: namely, when, notwith-
standing the defendant's silence, the sentencing court makes
it plain on the record sua sponte that it is choosing not to
depart on a particular ground because it believes (mistakenly,
as it turns out) it lacks authority to do so. See Sealed Case I,
199 F.3d at 490-91. Because of the possibility of such
reversible error, however remote, we conclude we should
apply the plain error standard rather than withhold review
altogether. We find no plain error here.
Draffin claims the record shows the court below misunder-
stood its authority to depart because of statements by the
judge indicating she sympathized with Draffin but was re-
quired to follow sentencing rules. See 4/5/2001 Sentencing
Tr. 96-97. The cited language, however, is at most ambigu-
ous, particularly in light of the court's simultaneous acknowl-
edgment that she "ha[d] some discretion," id. 97, and the
absence of any express refusal to depart. Cf. In re Sealed
Case I, 199 F.3d at 490-91 (finding "at worst ambiguous"
judge's statement "that he 'wish[ed]' he could have sentenced
appellant below the guideline range but concluded that he did
not 'have any alternative' "). As Draffin himself acknowl-
edges, see Reply Br. at 11, ambiguous statements cannot
redeem a defendant's failure to ask for departure. See
Sealed Case I, 199 F.3d at 491 ("To hold ... that a record at
worst ambiguous supports reversal is hardly consistent with
plain error review.").
For the preceding reasons, we conclude the district court's
failure to depart under U.S.S.G. s 4A1.3 was not plain error
because Draffin did not ask the court to grant such a depar-
ture and he has not unequivocally demonstrated the sentenc-
ing court misconstrued its authority to depart. Accordingly,
the judgment of the district court is
Affirmed.