United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 13, 2002 Decided June 18, 2002
No. 01-3101
In re: Sealed Case
Appeal from the United States District Court
for the District of Columbia
(No. 00cr00170-01)
Valinda Jones, Assistant U.S. Attorney, argued the cause
for appellant. With her on the briefs were Roscoe C. Howard
Jr., U.S. Attorney, John R. Fisher and Danny C. Onorato,
Assistant U.S. Attorneys.
A.J. Kramer, Federal Public Defender, argued the cause
and filed the brief for appellee.
Before: Ginsburg, Chief Judge, and Randolph and Tatel,
Circuit Judges.
Opinion for the Court filed by Circuit Judge Tatel.
Tatel, Circuit Judge: In sentencing Defendant for one
count of distributing crack cocaine, the district court departed
from the applicable Guidelines range based on "the totality of
circumstances reflecting the atypicality of this defendant."
The Government appeals. Because several factors considered
by the district court, including the disparity between Guide-
lines sentences for crack and powder cocaine, may not be
considered, we vacate the sentence and remand for re-
sentencing.
I.
Undercover United States Park Police arrested Defendant
after she attempted several times to sell them crack cocaine.
The grand jury indicted her for three counts of using a
telephone to facilitate a drug transaction and three counts of
distributing crack cocaine. Pursuant to a plea agreement in
which she pled guilty to one count of distributing more than
fifty grams of crack and promised to help ensnare other drug
dealers, the Government dropped the other five charges.
Prior to sentencing, the district court released Defendant on
her own recognizance, but later granted the Government's
motion to revoke the release when (1) she failed a drug test,
(2) she was again arrested and charged (this time with one
count of possessing crack cocaine and drug paraphernalia and
two counts of theft), and (3) the court discovered three
outstanding warrants for her arrest on other theft charges.
The final pre-sentence report assigned Defendant a base
offense level of twenty-nine, which took into account her other
drug charges as relevant conduct and reflected a three-level
downward adjustment for acceptance of responsibility and a
two-level downward adjustment pursuant to the safety valve
exception. Based on Defendant's lack of prior convictions,
the report fixed her criminal history level at I. Stating that
Defendant's attempts to assist in pursuing other drug sellers
were inadequate, the Government declined to file a motion for
a downward departure on that basis. See U.S. Sentencing
Guidelines Manual s 5K1.1 (2001) ("Upon motion of the
government stating that the defendant has provided substan-
tial assistance in the investigation or prosecution of another
person who has committed an offense, the court may depart
from the guidelines."). At the final sentencing hearing, the
district court credited Defendant with the two downward
adjustments recommended by the final pre-sentence report.
In addition to her criminal history level, this yielded a sen-
tencing range of 87 to 108 months.
Departing from this range, the district court explained in
an oral ruling and later in a written opinion its conclusion that
Defendant's case fell outside the "heartland" cases covered by
the Guidelines. Id. s 5K2.0 (policy statement). The district
court condemned the disparity in the Guidelines sentences for
crack and powder cocaine offenses, concluding that "the
Sentencing Commission did not adequately consider [all rele-
vant factors] at the time it wrote the drug guidelines in 1987."
In re Sealed Case, No. 00-0170, slip op. at 12 (D.D.C. July 13,
2001). In support, the court relied on reports issued by the
Commission in 1995 and 1997, both of which concluded that
the crack/powder differential "is a primary cause of the
growing disparity between sentences for Black and White
federal defendants," id. at 6, and that it undermined, rather
than furthered, Congress's articulated goals for drug offense
sentencing, id. at 12. The district court stressed that Defen-
dant "has no prior convictions of any kind, ... has the
support of her parents here every time we've been in Court,
... recognizes her drug problem, ... recognizes her respon-
sibility, ... has tried to cooperate with the Government, ...
is 28 years old [and thus] is not the kind of person that the
guideline writers would like to see spend 87 months in
prison." In re Sealed Case, No. 00-0170, slip op. at 8. Based
on its critique of the Guidelines and "the totality of circum-
stances reflecting the atypicality of this defendant," the dis-
trict court concluded that "a downward departure from the
otherwise applicable sentencing range is authorized." Id. at
16. The court imposed a twenty-four month sentence--the
upper end of the range, the district court explained, that
would have applied had Defendant's crime involved powder
cocaine. The Government now appeals.
II.
Congress gave district courts authority to depart from
sentencing levels established in the Guidelines if "the court
finds that there exists an aggravating or mitigating circum-
stance of a kind, or to a degree, not adequately taken into
consideration by the Sentencing Commission in formulating
the guidelines that should result in a sentence different from
that described." 18 U.S.C. s 3553(b). "We review district
court determinations that a given factor is present in a
particular case to a degree not adequately considered by the
Commission only for abuse of discretion, because '[d]istrict
courts have an institutional advantage over appellate courts in
making these sorts of determinations, especially as they see
so many more Guidelines cases than appellate courts do.' "
See United States v. Sun-Diamond Growers, 138 F.3d 961,
975 (D.C. Cir. 1998) (quoting Koon v. United States, 518 U.S.
81, 98 (1996)). By contrast, whether a ground for departure
"could ever be a permissible basis for departure is a question
of law which we address de novo." Id. "The court of appeals
need not defer to the district court's resolution of the point."
Koon, 518 U.S. at 100.
The Government first challenges the district court's reli-
ance on the Sentencing Guidelines' crack/powder disparity as
a basis for departure, arguing that "[c]ontrolling law clearly
prohibits a departure on those grounds." Appellant's Open-
ing Br. at 22. However much we may agree with the district
court and the Sentencing Commission that the crack/powder
disparity is unjustified, we think the Government is correct.
In United States v. Anderson, we squarely rejected the
proposition that the crack/powder disparity can ever serve as
a valid basis for downward departure. 82 F.3d 436, 440-42
(D.C. Cir. 1996); see also United States v. Webb, 134 F.3d
403, 407-08 (D.C. Cir. 1998) ("[D]isproportionality does not, in
itself, provide an appropriate basis for a downward depar-
ture."). Permitting departures based on that disparity,
Anderson explains, would "allow every sentencing district
judge to select his or her personal crack-cocaine ratio.... It
is hard to imagine a more flagrant violation of the Guidelines'
purpose to avoid 'unwarranted sentencing disparities among
defendants with similar records who have been found guilty
of similar criminal conduct.' " Anderson, 82 F.3d at 440
(quoting 28 U.S.C. s 991(b)(1)(B)).
Defendant argues that Koon v. United States, 518 U.S. 81
(1996), effectively overruled Anderson. Koon established a
four-part analytical framework to guide appellate review of
departure determinations, under which departure factors are
"classified as either: (1) forbidden, (2) encouraged, (3) dis-
couraged, or (4) unmentioned." Id. at 96. Pointing out that
the Court unequivocally precluded district courts from consid-
ering only "forbidden" factors and that the crack/powder
disparity is not one of the forbidden factors listed in the
Guidelines--race, sex, national origin, creed, religion, socio-
economic status, lack of guidance as a youth, physical condi-
tion, and coercion and duress, see Guidelines Manual
s 1.A.4(b) (policy statement)--Defendant argues that circuit
courts may not, as this court did in Anderson, categorically
bar sentencing judges from considering the disparity as a
departure factor. We are unconvinced. Although it is true,
as Defendant observes, that the crack/powder disparity
counts as an unmentioned factor within Koon's four-part
scheme and that Koon permits sentencing courts limited
discretion to depart on the basis of such factors, see 518 U.S.
at 96 (quoting Guidelines Manual s 1.A.6), Koon also makes
clear that "if a factor is unmentioned in the Guidelines, the
court must, after considering the structure and theory of both
relevant individual guidelines and the Guidelines taken as a
whole, decide whether it is sufficient to take the case out of
the Guideline's heartland," id. (citation and internal quotation
marks omitted). Because the Sentencing Guidelines are de-
signed to allow district courts to consider every convicted
person as an individual and to depart only in atypical cases
where the particular facts distinguish the case, the crack/pow-
der disparity--which implicated in all cocaine cases--cannot,
in Koon's words, be "sufficient to take the case out of the
Guideline's heartland." See also United States v. Lewis, 90
F.3d 302, 304-05 (8th Cir. 1996) (holding that because "all
defendants convicted of crack-related crimes receive harsh
sentences," the crack/powder disparity is not an aggravating
or mitigating circumstance "particular to the appellants' case
which distinguish[es] theirs from the 'heartland' cases").
Anderson thus remains good law.
Our conclusion that Anderson survives Koon does not end
our analysis, for here, unlike in Anderson, the district court
relied on several additional factors to support its departure
decision. The Government argues that none of the factors
cited by the district court can support departure either
because they are invalid or because they are not present to a
degree sufficient to "distinguish[ ] this case from the 'heart-
land' cases covered by the guidelines." Guidelines Manual
s 5K2.0 (policy statement). True enough, but as Defendant
points out, the district court did not depart on the basis of
any of these factors alone. Instead, relying on the Sentenc-
ing Commission's comment that "the Commission does not
foreclose the possibility of an extraordinary case that, because
of a combination of [not ordinarily relevant] characteristics or
circumstances, differs significantly from the 'heartland' cases
covered by the guidelines," Guidelines Manual s 5K2.0 (com-
ment), the court departed based on "the totality of circum-
stances reflecting the atypicality of this defendant." In re
Sealed Case, No. 00-0170, slip op. at 15.
In its totality analysis, however, the district court relied on
several impermissible factors. In addition to the crack/pow-
der disparity, the district court mentioned the Defendant's
criminal history. The Sentencing Commission has stated that
because "[t]he lower limit of the range for Criminal History
Category I is set for a first offender with the lowest risk of
recidivism, ... a departure below the lower limit of the
guideline range for Criminal History Category I on the basis
of adequacy of criminal history cannot be appropriate."
Guidelines Manual s 4A1.3 (policy statement). Equally in-
valid is the district court's reliance on Defendant's attempted
assistance to the Government. "[I]n the absence of a govern-
ment motion," we have held, "a district court lacks authority
under the Guidelines to depart from the applicable sentencing
range on the basis of a defendant's substantial assistance."
In re Sealed Case No. 97-3112, 181 F.3d 128, 142 (D.C. Cir
1999) (en banc); see also Guidelines Manual 5K1.1 (policy
statement) (permitting departure for substantial assistance
only on "motion of the government"). Although these princi-
ples were announced in the context of departures based on a
single factor only, we see nothing in the Guidelines that would
nevertheless permit district courts to consider such prohibit-
ed factors in a totality of the circumstances analysis under
section 5K2.0.
Unlike the crack/powder sentencing disparity, criminal his-
tory, and substantial assistance factors, the remaining factors
cited by the district court--Defendant's acceptance of respon-
sibility, her desire to seek rehabilitation, and her family and
community ties--are not categorically prohibited. According
to the Government, not even these factors may be considered
either because they are already accounted for elsewhere in
the sentencing process or because they are not present to a
sufficient degree to warrant departure. We disagree. As to
the Government's first point, the Sentencing Commission has
made clear that "the court may depart from the guidelines,
even though the reason for departure is taken into consider-
ation in determining the guideline range (e.g., as a specific
offense characteristic or other adjustment)," although such a
departure requires "unusual circumstances." Guidelines
Manual s 5K2.0 (policy statement). The Government's sec-
ond point suffers from two defects. For one thing, as we
indicated above, the district court did not depart on the basis
of any of these factors individually. Moreover, even if it had
so departed, it could still take these factors into account in a
totality of the circumstances analysis. The commentary is
very clear on this: "The Commission does not foreclose the
possibility of an extraordinary case that, because of a combi-
nation of such characteristics or circumstances, differs signifi-
cantly from the 'heartland' cases covered by the guide-
lines...." Guidelines Manual s 5K2.0 (commentary).
Accordingly, because the district court relied on both valid
and invalid factors, we vacate the sentence and remand for
re-sentencing under a totality of the circumstances analysis
that takes account of (1) the three valid factors mentioned in
this opinion and any other valid factors the district court may
consider relevant, such as Defendant's post-plea offenses, and
(2) the Sentencing Commission's admonition that such depar-
tures are available only in "extraordinary cases," Guidelines
Manual s 5K2.0. See Koon, 518 U.S. at 113 ("When a
reviewing court concludes that a district court based a depar-
ture on both valid and invalid factors, a remand is re-
quired....").
So ordered.