United States Court of Appeals
Fifth Circuit
F I L E D
In the November 11, 2004
United States Court of Appeals Charles R. Fulbruge III
for the Fifth Circuit Clerk
_______________
m 03-51367
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
GEORGE LAWRENCE ANDREWS, also known as Larry Andrews,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Western District of Texas
_________________________
Before SMITH and GARZA, Circuit Judges, departure regarding his sentence. Concluding
and VANCE,* District Judge. that the district court’s decision was fatally
infected with antagonism toward the United
JERRY E. SMITH, Circuit Judge: States Sentencing Guidelines, we reverse and
remand for resentencing by a different district
George Andrews challenges an upward judge.
I.
*
District Judge of the Eastern District of Andrews and his mother were indicted for
Louisiana, sitting by designation. offenses stemming from a scheme to defraud
their elderly neighbor, Doris Carson, of over guideline range, noting that drug couriers
$150,000 and other things of value. Andrews transporting contraband across the border for
pleaded guilty, to conspiring to commit mail, $200-$300 “to feed their starving children”
bank, and access device fraud and to the sub- typically face longer imprisonment. Andrews’s
stantive offenses of bank fraud and access de- case was co mpared with, and placed in the
vice fraud. In support of the plea, the govern- same category with, the court’s most recent
ment submitted a factual basis, providing that upward departure involving defendants who
between October 1999 and June 2001, An- defrauded individuals out of charitable contri-
drews and his mother conspired to defraud butions immediately following the terrorist
Carson by, inter alia, negotiating in excess of attacks of September 11, 2001.
100 forged personal checks made payable to
Andrews, creating a bogus notary letter for the At the sentencing hearing, the government
purpose of cashing certificates of deposit be- recommended an upward departure to 37-46
longing to Carson, using Carson’s credit cards months. After hearing from both sides, the
to obtain things of value, and using her per- court orally announced its decision to depart
sonal information to open and use additional upwardly to 120 months. The court stated
credit accounts. that “the sentencing guidelines are completely
out of whack,” and sentencing Andrews to 15
The Presentence Report (“PSR”) assessed months would “violate the Court’s t’aint right
a total offense level of 14, which reflected doctrine,” noting, “[t]hat’s probably not a real
(1) a base offense level of 6; (2) a seven-level technical legal finding.” The court found that
increase pursuant to U.S.S.G. § 2F1.1(b)- the loss to the victim was traumatic and that
(1)(H) because the loss exceeded $120,000; the offense contained an element of identity
(3) a two-level increase for more than minimal theft that the court claimed was not taken into
planning; (4) a two-level increase pursuant to account by the Sentencing Commission. The
§ 3A1.1(b)(1) because Carson’s age rendered court commented that Andrews’s failure to
her vulnerable; and (5) a three-level reduction make substantial restitution belied his claim of
for acceptance of responsibility.1 Andrews’s a recent spiritual awakening.
total offense level of 14, coupled with a crimi-
nal history category of I, yielded a guidelines As a further ground for departure, the court
range of 15 to 21 months’ imprisonment. noted a “bullying aspect” of the offense based
on Andrews’s physical size as compared to
At Andrews’s first sentencing hearing, the Carson’s, although it conceded that there was
district court notified him that sentencing no evidence that the size differential was used
would be continued for thirty days and that the affirmatively. The court found that Andrews’s
court was considering upwardly departing “up distinct acts of criminal behavior would other-
to and including the statutory maximum.” The wise justify consecutive sentences, and accord-
court expressed dissatisfaction with Andrews’s ingly the court imposed alternative 21-month
consecutive sentences on each of the six
counts. Andrews entered timely objection on
1
All references to the United States Sentencing the ground that the court had failed to give
Guidelines are to the 2000 version, which were the adequate notice of potential grounds for de-
guidelines in effect when Andrews’s criminal parture.
conduct took place.
2
The court followed its oral pronouncement drews’s crime is far worse and deserves more
of sentence with a written opinion. United punishment than the guidelines suggest.” Id.
States v. Andrews, 301 F. Supp. 2d 607 (W.D. at 610-11. As a result of its findings, the dis-
Tex. 2004). The court first noted that the trict court imposed an upward departure to
facts of Andrews’s case are egregious and that 120 months, which is the subject of the instant
a guideline sentence of 15 months “would appeal. Id. at 612.
make a laughing stock of the concept of jus-
tice.” Id. The court also commented on the II.
federal bench’s need for “some modicum of Andrews asserts that the failure of the court
discretion” in making sentencing departures to specify grounds for its intended upward de-
and went on to explain, under four subhead- parture from the applicable guidelines range
ings, its reasons for upward departure. Id. at rendered notice of such departure inadequate
609-11. and warrants resentencing. De novo review
applies to claims of lack of reasonable notice
First, under “Lack of Acceptance of Re- as to the grounds for upward departure. Unit-
sponsibility,” the court determined that despite ed States v. Pankhrust, 118 F.3d 345, 356-57
his guilty plea, Andrews lacked sincerity, had (5th Cir. 1997) (citing United States v. Knight,
failed to provide restitution, and sought to 76 F.3d 86, 87 (5th Cir. 1996)).
shift blame to his deceased mother. Id. at 609-
10. Next, under a heading entitled “Punish- Under Rule 32(h) of the Federal Rules of
ment Consequences Not Present,” the court Criminal Procedure,
stated that Andrews would not be subjected to
additional punishment/loss consequences Before the court may depart from the appli-
typically visited on white collar fraud defen- cable sentencing range on a ground not
dants, because he did not face the “loss of identified for departure either in the pre-
mega income, removal of professional licenses sentence report or in a party’s prehearing
and political power, forfeiture of mansions and submission, the court must give the parties
limousines and being booted from the country reasonable notice that it is contemplating
club.” Id. at 610. such a departure. The notice must specify
any ground on which the court is contem-
Thirdly, under “Comparison to Other De- plating a departure.
partures by This Court,” the court cited two
fraud cases in which it had upwardly departed Codifying the rule of Burns v. United States,
and two in which it had imposed downward 501 U.S. 129 (1991), the purpose of this pro-
departures. Id. Without discussing the facts vision is to avoid placing defense counsel in
of these cases, the court concluded that An- the position of “trying to anticipate and negate
drews’s situation was more closely aligned every conceivable ground on which the district
with the upward departure cases. Id. Finally, court might choose to depart on its own initia-
under “Comparison of Sentences in Financial tive.”2
Crimes with Guideline Punishment in Low-
Level Drug Offenses,” the court again com-
mented on the typical guidelines sentence im-
posed for drug couriers, concluding that “An- 2
United States v. Milton, 147 F.3d 414, 421
(5th Cir. 1998) (quoting Burns, 501 U.S. at 137).
3
As a preliminary matter, the court gave ad- testing as required by Burns.5
equate and reasonable notice that it was con-
sidering an upward departure at all in the ini- Andrews’s arguments to the contrary, so
tial sentencing hearing. Despite the fact that long as he was specifically notified that these
neither the PSR nor the government had re- matters troubled the court in the context of
quested an upward departure, the court valid notification of upward departure, he can-
continued the case for thirty days, telling not now complain of surprise that such factors
Andrews that it planned to depart upwardly to were considered at the subsequent sentencing
the maximum possible sentence for the of- hearing. The touchstone of rule 32 is reason-
fenses charged.3 able notice, so the fact that the court did not
specifically delineate that it would use those
In addition, for many of the factors used in factors should not make the notice defective;
deciding on an upward departure, the court we should have confidence in the abilities of
gave adequate and precise notice of the spe- the average defense counsel to realize that
cific grounds. At the initial hearing the court mentioning factors in the context of upward
explicitly stated most of the concerns it had departure notice puts the factors “in play” so
that were ultimately used, legitimately or not, as to allow counsel adequately to prepare for
to calculate the departure.4 Although these sentencing.6
were mentioned merely as concerns alongside
the order continuing the case, they were suffi- On the other hand, the court failed to give
cient to allow Andrews reasonably to prepare adequate notice of other factors ultimately
a meaningful response and engage in adversary used in calculating an upward departure, by
failing to reference them at all at the initial
hearing when the notice of upward departure
was given. The court did not mention the fac-
3
See, e.g., United States v. Clements, 73 F.3d tor of the physical disparities between An-
1330, 1341 (5th Cir. 1996) (holding that intention drews and Carson until Andrews was actually
to consider an upward departure, transmitted with sentenced, and did not reference the absence
six days’ notice in advance of sentencing by fax, of other punishment consequences that were
was sufficient). normally applicable to other fraud defendants
until its written opinion supporting the depar-
4
The court noted its belief that Andrews was ture.
trying to shift blame to his deceased mother and
had not made what it considered legitimate efforts The government’s argument, that sufficient
at restitution, which were both ultimately consid- notice was given as a result of the court’s gen-
ered with regard to whether Andrews had accepted
responsibility. The court highlighted its concerns
regarding the disparity between federal drug and
fraud crime sentences under the guidelines, which 5
See 501 U.S. at 136.
was listed under one of the four major sub-point
6
justifications in the written opinion supporting an Cf. United States v. Knight, 76 F.3d 86, 88
upward departure. Finally, the court compared the (5th Cir. 1996) (holding that adequate notice exists
case to another recently-upheld upward departure, for upward enhancements for factors presently in
which was also listed as a major sub-point justifi- the guidelines to allow an average defense counsel
cation in the subsequent written opinion. adequately to prepare for sentencing).
4
erally discussing “victim-related” and “offense- provided only a bare assertion that Andrews
related” factors,7 is incorrect, because it goes would have done nothing differently if given
against the plain meaning of rule 32(h), requir- proper notice, but Andrews has presented
ing that the court “. . . specify any ground on arguments that he could have made to oppose
which the court is contemplating a departure” the departure if he had had adequate notice, a
(emphasis added). Allowing the court broadly situation other courts have found insufficient
to open the door to use any victim- or offense- to satisfy the government’s burden.10 The er-
related departure factor merely by mentioning ror is not harmless, and Andrews would be
one when notice of departure is given, pro- entitled to remand on the ground of defective
vides defense counsel no guidance and thus notice even if the factors used to grant his up-
tramples on the objectives of rule 32(h) and ward departure were appropriate, which as we
Burns, of allowing counsel meaningfully to discuss infra, they were not.
object. Despite the fact that the court gave
notice of most of the grounds that ultimately III.
were used for departure, it still was error not Andrews also contends that his sentence
to give notice of all that were considered, should be vacated and remanded for resentenc-
because the plain text of rule 32(h) commands ing because the upward departure was based
the court to “. . . specify any ground . . . ” on improper factors. We agree.
(emphasis added).
A.
The government has failed to meet its bur- When reviewing whether a sentencing de-
den of showing that the error in not notifying parture is based on appropriate factors, 18
Andrews of the specific grounds for upward U.S.C. § 3742(e) guides our inquiry and im-
departure was harmless. Because, at sentenc- poses a standard of review. It provides as
ing, Andrews appropriately objected to lack of follows:
notice, the burden is on the government to
show that the error was harmless.8 In sentenc- Consideration.SSUpon review of the re-
ing cases, the burden is on the government to cord, the court of appeals shall determine
show that absent the error, the sentence would whether the sentenceSS
have been the same.9 The government has
...
7
The government argued that the fact that the (3) is outside the applicable guideline
district court noted the vulnerability of the elderly range, and
widow gave notice of the use of any “victim-re-
lated” departure factors, and the fact that the case
was compared to another fraud case in which an
9
upward departure was upheld gave notice of the (...continued)
potential use of any “offense-related” factors. (5th Cir. 1993) (applying rule to misapplication of
guidelines); see also United States v. Himler, 355
8
See United States v. Olano, 507 U.S. 725, F.3d 735, 743 (3d Cir. 2004) (holding that burden
734 (1993). is on government to show that error in failure to
provide notice is harmless).
9
See United States v. Tello, 9 F.3d 1119, 1129
10
(continued...) See, e.g., Himler, 355 F.3d at 743.
5
... (ii).13
(B) the sentence departs from the applica- B.
ble guideline range based on a factor thatSS In its written opinion supporting departure,
the co urt listed its justifications under four
(i) does not advance the objectives set forth subheadings: (1) “Lack of Acceptance of Re-
in section 3553(a)(2);[11] or sponsibility”; (2) “Punishment Consequences
Not Present”; (3) “Comparison to Other De-
(ii) is not authorized under section partures by This Court”; and (4) “Comparison
3553(b);[12] or of Sentences in Financial Crimes with Guide-
line Punishment in Low-Level Drug-Offenses.”
(iii) is not justified by the facts of the case We examine each in turn.
....
1.
18 U.S.C. § 3742(e). The standard of review The court erred in considering failure to
for this subsection has been recently changed accept responsibility as justification for an up-
to de novo by the 2003 amendments pursuant ward departure, because that factor is already
to the Prosecutorial Remedies and Tools considered and factored into the guidelines.
Against the Exploitation of Children Today See U.S.S.G. § 3E1.1. Listed under a major
Act (the “PROTECT Act”), as interpreted in subheading in its opinion supporting upward
United States v. Bell, 371 F.3d 239, 243 (5th departure, the court found that Andrews had
Cir. 2004). In addition to the explicit require- not completely accepted responsibility as
ments set forth in § 3742(e)(3)(B), decisions shown by (1) a lack of paid restitution; (2) his
by the Sentencing Commission that a particu- attempts to blame his conduct on the influence
lar categorical basis for departure is permissi- of his mother; and (3) a perceived lack of sin-
ble or impermissible are determinative in re- cerity in his proffered words of remorse.
viewing a departure under subsections (i) and
Instead of inappro priately granting an up-
ward departure on this ground, the court
should have used its discretion to deny a three-
11
The objectives enumerated in § 3553(a)(2) level downward adjustment for acceptance of
are (A) to reflect the seriousness of the offense, to responsibility, which, curiously, the court
promote respect for the law, and to provide just instead granted. The comments to § 3E1.1
punishment; (B) to afford adequate deterrence for contemplate denying the downward adjust-
criminal conduct; (C) to protect the public from ment where a defendant has pleaded guilty and
further crimes by the defendant; and (D) to provide admitted fault, but his conduct contradicts his
the defendant with needed educational training, words. See id. cmt. 3. This was what the
medical care or other correctional training.
court seemed to find in this case, when it
12
Section 3553(b) provides that the court shall commented on the defendant’s sincerity and
impose a sentence with the applicable guideline demeanor, and such a determination by the
range unless “there exists an aggravating or miti-
gating circumstance of any kind, or to a degree, not
13
adequately taken into consideration by the Sen- See Bell, 371 F.3d at 244 (citing United
tencing Commission in formulating the guidelines.” States v. Thurston, 358 F.3d 51 (1st Cir. 2004)).
6
sentencing court would have been subject to justification for upward adjustment under
“great deference” on review. See id. cmt. 5. “Lack of Acceptance of Responsibility” on
obstruction of justice, it never made specific
Although upward departures are allowed findings that it was of the kind so egregious
for obstruction of justice in some cases, the that it deserved stronger treatment than is al-
government is wrong in attempting to recast ready contemplated by a possible upward ad-
the “Lack of Acceptance of Responsibility” justment under § 3C1.1.
justification along those lines. First, upward
enhancements for obstruction of justice are al- 2.
ready accounted for under the guidelines. See The court erred in considering socio-eco-
U.S.S.G. § 3C1.1. The government cites two nomic status in giving Andrews an upward ad-
cases in which upward departures were al- justment, because that is explicitly a prohibited
lowed beyond the two-level increase provided departure factor under t he guidelines.15 The
under the guidelines, but those courts empha- court highlighted “elements of punishment and
sized that the government had demonstrated loss” that are normally present with other
that the obstruction was so serious that the fraud defendants but not with Andrews, such
guidelines had not taken the activity into ac- as, “loss of mega income, removal of pro-
count in the standard § 3C1.1 enhancement.14 fessional licenses and political power, for-
feiture of mansions and limousines, and . . .
Andrews’s conduct is distinguishable from being booted from the country club and losing
that in both cases as not nearly as severe. Al- other indicia of social status.”16 According to
though he may have attempted to shift blame this curious logic, a downward departure
on an unavailable co-conspirator (his now de- should be given to a wealthy white-collar de-
ceased mother), his actions did not cause her fendant because of loss of his limousine and
to be unavailable as with the defendant in Is- “mega income” job. Departure on these
moila, 100 F.3d at 398. Andrews may have grounds is plainly prohibited.
been remiss in failing to pay adequate restitu-
tion to the victim, but he did not make fraudu- 3.
lent disclosures to officials to understate his The court failed to provide adequate justifi-
ability to pay or hide assets to avoid obligation cation for its upward departure in comparing
as did the defendant in Merritt, 988 F.2d at
1305. Even if the court meant to base the
15
See U.S.S.G. § 5H1.10; see also United
States v. Painter, 375 F.3d 336, 338 (5th Cir.
14
See United States v. Ismoila, 100 F.3d 380, 2004) (finding that affluence was improperly con-
398 (5th Cir. 1996) (finding that a combination of sidered as a factor in upwardly departing); see also
the fact that defendant was harboring a co-con- United States v. Stout, 32 F.3d 901, 903-04 (5th
spirator while blaming him in court for the offense Cir. 1994) (finding that defendant’s status as a
was substantially serious obstruction warranting an judge and maintenance of an “excessive lifestyle”
upward departure); see also United States v. were improper grounds for departure); see also
Merritt, 988 F.2d 1298, 1310 (2d Cir. 1993) (find- United States v. Hatchett, 923 F.2d 369, 373-74
ing that defendant had gone “far beyond” simple (5th Cir. 1991) (finding that court improperly
“failure to pay restitution” and “concealment of considered wealth in granting upward departure).
assets” to warrant upward departure despite up-
16
ward adjustments available under guidelines). Andrews, 301 F. Supp. 2d at 610.
7
Andrews’s case to other fraud cases in which summarily stating that the case is similar
departures were granted. The court found that enough to others in which the defendants
the facts put Andrews in the “firmament” with committed the same class of crime and upward
defendants granted upward enhancement in departures were justified.
two other criminal fraud cases17 and not with
two others who were granted downward ad- 4.
justments in two other cases. The court mere- The court erred in considering the differ-
ly cited the cases without any description of ence between drug and fraud sentences under
how Andrews’s situation is similar or distin- the guidelines. Mere disagreement with the
guishable.18 structure of the guidelines is not a legitimate
reason for departure.20
Though it might be legitimate to justify an
upward departure based on the similarity of Irrespective of whether the court was cor-
elements in the case at hand to those in other rect, as a matter of public policy, that fraud de-
fraud cases that justified an upward departure, fendants should be punished more severely
the district court favored us with no such ade- than low-level drug offenders who commit of-
quate analysis. The court merely cited cases, fenses merely to provide subsistence to their
neither of which is directly on-point as far as families, the court overstepped its authority by
the grounds for an upward departure are con- departing on such grounds. The guidelines are
cerned.19 The court cannot skirt its obligation constitutional in the Fifth Circuit and are bind-
to provide written justifications merely by ing on federal courts in meting out sentences.21
The guidelines provide a mechanism for judges
17
to provide upward or downward departures in
The district court cited United States v. Cer- particular cases where particular circumstances
da, No. 02-50697 (5th Cir. Apr. 23, 2003) (un-
exist and particular procedures are followed;
published), and United States v. Delossantos, 85
merely allowing departure where a judge dis-
Fed. Appx. 398 (5th Cir. 2004) (unpublished), in
which we affirmed upward departures. agrees with the proportionality of different
types of crimes would frustrate the purposes
18
In determining whether Andrews deserves an
upward departure, it is logically irrelevant whether
his situation is similar to that in cases in which
downward departures were granted. If the district
court validly granted downward departures in those
20
cases, and the only issue in this case is whether See United States v. Lopez, 875 F.2d 1124,
Andrews should be sentenced within the applicable 1126 (5th Cir. 1989); see also U.S.S.G. § 5K2.0,
range or above it, then Andrews’s conduct is cmt. (stating that “dissatisfaction with the available
necessarily outside the “firmament” of those cases sentencing range or a preference for a different
in which downward departures were granted. sentence than that authorized by the guidelines is
not an appropriate basis for a sentence outside the
19
In Cerda, we upheld an upward departure for applicable guideline range”).
defendants who opportunistically used the Sep-
21
tember 11, 2001, terrorist attacks fraudulently to See Mistretta v. United States, 488 U.S. 361,
solicit money for a phony charity, and in Delos- 412 (1989); see also United States v. Pineiro, 377
santos we affirmed a departure based on post-plea F.3d 464 (5th Cir. 2004), petition for cert. filed
continuing criminal conduct. (July 14, 2004) (No. 04-5263).
8
of the sentencing scheme.22 Congress, through ment correctly indicates that some of these
the Sentencing Commission, has made the de- grounds might be legitimate bases for upward
termination of which crimes deserve more departure (for example, extreme psychological
punishment, and it is not the role of the judge trauma to the victim),25 it is not evident wheth-
to displace those legislative decisions.23 er the statutory framework allows us to con-
sider factors that were in the oral explanation
C. but not the written one. Though § 3742(e)-
In deciding to grant an upward departure, (3)(C), which involves review of the reason-
the court pronounced justifications in its oral ableness of the extent of an upward departure,
pronouncement that were different from those states that the consideration of reasonableness
in its written opinion.24 Although the govern should be based on the written justifications,26
no similar limitation explicitly appears in
§ 3742(e)(3)(B), which involves review of the
22
See U.S.S.G. § 1A.3 (“Congress sought pro- appropriateness of factors used in granting an
portionality in sentencing through a system that upward departure.27
imposes appropriately different sentences for crim-
inal conduct of differing severity.”) It is unnecessary for us to resolve this am-
biguity and consider the legitimacy of the oral
23
The district court seems more comfortable justifications for upward departure, because
with sentencing Andrews based on Dante’s levels
of hell, but such a sentencing scheme has not been
accepted as the law in this or any other federal (...continued)
circuit. See Andrews, 301 F. Supp. 2d at 609 between Andrews and Carson.
(stating that the “Eighth Circle” would be appro-
priate for Andrews’s co-conspirator); see also id. 25
See U.S.S.G. § 2F1.1, cmt. 11(c) (allowing
at 612 (stating that the “Fourth Circle” is appropri- for upward departure where there is extreme psy-
ate for those who prey on the elderly); but cf. chological trauma to the victim).
United States v. Winters, 117 F.3d 346, 348 (7th
26
Cir. 1997) (affirming denial of a downward depar- Title 18 U.S.C. § 3742(e)(3)(C) states that
ture despite district court’s feeling that defendant the appellate court will consider whether “the sen-
belonged on a lower level of hell, citing Dante’s tence departs from the applicable guidelines range,
Inferno). having regard for the factors to be considered in
this title and the reasons for the imposition of the
24
In its oral pronouncement of sentence, the particular sentence, as stated by the district court
court made many findings, including (1) that the pursuant to the provisions of § 3553(c).” Title 18
guidelines are “completely out of whack” and the U.S.C. § 3553(c)(2) imposes a requirement that
recommended 15 months for the defendant did not when a particular sentence is outside the appropri-
seem right; (2) that Carson’s loss of financial se- ate guidelines range, it must state “[t]he specific
curity was “traumatic”; (3) that the offense in- reason for the imposition of a sentence different
volved identity theft, not taken into account by the from that described, which reasons must also be
Sentencing Commission when creating the doctrine; stated with specificity in the written order of
(4) that Andrews’s failure to make substantial judgment and commitment . . .” (emphasis added).
restitution belied his claim of recent spiritual
awakening; and (5) that there was a “bullying as-
27
pect” to the offense based on the difference in size See Bell, 371 F.3d at 245 (noting that the
(continued...) statutory framework in this respect is “unclear”).
9
the decision was based on at least one imper- grouped together into a single Group.”30 Once
missible factor that caused the sentence to be grouped, the resulting sentences are to run
too high, requiring remand, and on remand concurrently.31 It is startling that the district
here the district court may consider only jus- court attempted to insulate his use of improper
tifications given in its written opinion that we departures on this groundSSindeed, we recent-
approve of as legitimate.28 Hence, we here ly have reversed the same judge for precisely
consider only the justifications given in the this error.32
written explanation.29
IV.
D. Andrews requests that on remand, this case
The court’s attempt to insulate its upward should be assigned to a different judge. We
departure by announcing an alternative consec- have the supervisory power to do so,33 but it is
utive sentencing ground is improper. The “extraordinary” and should be exercised with
guidelines provide that fraud offenses “in- the “greatest reluctance”34 We have declined
volving substantially the same harm shall be to reassign absent a showing of bias or antago-
nism indicating that the judge would refuse im-
partially to weigh evidence or make objective
decisions on remand.35
Assignment to a different judge is appro-
28
See 18 U.S.C. § 3742(f)(2)(A) (requiring priate where the first judge departed based on
remand where departure is based on “an impermis- his “subjective dissatisfaction with the Guide-
sible factor” that caused the sentence to be too lines’ sentencing constraints.” United States v.
high); see also 18 U.S.C. § 3742(g)(2) (limiting
Maldonado-Montalvo, 356 F.3d 65, 73 n.10,
district court on remand to using justifications for
75-76 (1st Cir. 2003). Here the judge based
upward departures to those found in the original
written opinion and approved of by appellate its departure “first and foremost” on his per-
court). sonal disagreement with the guidelines.
29
Even if we were to find that all the written We exercise the power of reassignment be-
justifications for upward departure were legitimate, cause of this judge’s brazen antagonism to
a remand would still have been appropriate be-
cause of possible improper factors that were only
mentioned orally at sentencing and not subse- 30
U.S.S.G. § 3D1.2.
quently memorialized in the written opinion. In
Bell, 371 F.3d at 246, we remanded for resente- 31
See U.S.S.G. § 5G1.2, cmt. n.1.
ncing where the court identified the possible con-
sideration of mental health, an improper factor in 32
See United States v. Candelario-Cajero, 134
determining a downward departure, despite the F.3d 1246, 1248 (5th Cir. 1998).
subsequent written justifications for departure all
being legitimate. Here, the fact that the court or- 33
See United States v. Winters, 174 F.3d 478,
ally mentioned a physical disparity in Andrews’s 487 (5th Cir. 1999).
and Carson’s respective body sizesSSwhile oddly
noting that it was irrelevant to the execution of the 34
See id. (internal citations omitted).
criminal offenseSSmight have been sufficient on its
35
own to warrant a remand for resentencing. See id. at 487-88.
10
both the tenets of the guidelines and to An- id. at 512-13. The Phipps court reasoned that
drews, as indicated during the sentencing pro- such a departure did “not fit within the pur-
ceedings. This is far from the first time we pose of § 3742(g), ‘to prevent sentencing
have had to reverse this judge for blatantly courts, on remand, from imposing the same
electing to ignore the plain language of the improper departure using a different the-
guidelines.36 Accordingly, we remove the dis- ory.’”37
trict judge from this case because he has
breached the barrier between the rule of law Phipps is distinguishable from this case, be-
and the exercise of personal caprice. cause here the court did impose a departure
that is the subject of the instant appeal; the
V. grounds for departure did not become “newly-
On remand, the district court’s discretion is germane as a result of our correction of the
restricted by the dictates of the PROTECT sentence.” Id. at 512. Moreover, the plain
Act, 18 U.S.C. § 3742(g). According to that language of § 3742(g) appears to handcuff any
provision, if a case is remanded based on the court on remand; the prohibition is directed to
use of an improper factor in resentencing, the “a district court on remand” and does not dis-
court on remand cannot depart from the appli- tinguish between an original sentencing judge
cable guidelines range unless the ground “was and a new court. 18 U.S.C. § 3742(g) (em-
specifically and affirmatively included in the phasis added). The statute further states that
written statement of reasons” and “was held by on remand the court is limited to the reasons
the court of appeals, in remanding the case, to that were “in the written statement of reasons
be a permissible ground of departure.” 18 required by section 3553(c) in connection with
U.S.C. § 3742(g)(2). the previous sentencing of the defendant prior
to appeal,” referring to the previous sentencing
We reject the government’s argument, generally and not to any particular judge. 18
based on United States v. Phipps, 368 F.3d U.S.C. 3742(g)(2)(A).
505 (5th Cir. 2004), that the limitations im-
posed by § 3742(g) should not apply if the Further, under § 3742(g)(2) the only rea-
case is remanded to a different judge. In sons that may be considered by the new judge
Phipps, we held that § 3742(g) is inapplicable on remand are grounds for departure that were
where the district court did not depart in the organized under the sub-heading “Reasons for
original sentence and the need for departure Departure” in the first judge’s written opinion.
arose as a result of the appellate mandate. See See Andrews, 301 F. Supp. 2d 609-11. The
government argues that other reasons that
were mentioned elsewhere in the opinion, but
36
were not fully developedSSfor example, the
See, e.g., United States v. Phillips, 382 F.3d
fact that this case involved identity
489 (5th Cir. 2004) (reversing the same judge for
granting downward departure below mandatory
theftSSshould be legitimate grounds for depar-
minimum sentence under the guidelines); see also ture on remand because they were referenced
Candelario-Cajero, 134 F.3d 1246 (reversing the
same judge for assessing consecutive sentences in
37
contravention of specific guidelines requirement of Id. at 513 (citing H.R. Conf. Rep. No. 108-
concurrent sentences for the specific offense in 66, at 59 (2003), reprinted in 2003 U.S.C.C.A.N.
question). 683, 694).
11
somewhere in the written opinion required by the PROTECT Act on remand for re-
18 U.S.C. § 3553(c).38 Because the judge sentencing. At the end of the day, Andrews
chose to place this information in the “Back- may deserve 120 months in prison for his rep-
ground” section, rather than specifically delin- rehensible criminal acts, but he also deserves
eate why this factor may have warranted an to be sentenced according to law.
upward departure under his neatly organized
section entitled “Reasons for Upward Depar- VI.
ture,” any discussion of identity theft was We are disappointed that the United States
merely precatory and not “specifically and af- Attorney’s Office was unwilling in its brief,
firmatively included in the written statement of and until pressed hard by this court on oral
reasons” as required by the statute.39 argument, to acknowledge even a single error
in the way the original judge conducted these
Consequently, the new judge on remand proceedings. The government’s brief, which
may assess an upward departure only on the argued stridently that every one of the district
ground that the facts of this case are similarly court’s decisions actions was justified, is sur-
egregious to those in other fraud cases in prising to this court, because the responsibility
which courts have granted upward departures, of the Department of Justice, in its representa-
so long as the justification is adequately devel- tion of the United States in criminal proceed-
oped. In addition, the judge may consider ings, is to do justice and to see to it that the
making or denying any other upward or down- law is followed, not to obtain the highest pos-
ward adjustments that are available under the sible sentence in every case. We do under-
guidelines (for example, denying Andrews the stand, however, that the government was
three-level downward adjustment for accep- faced with a difficult situation: a district judge
tance of responsibility previously granted by who is not willing to follow the sentencing
the original judge), because § 3742(g) applies guidelines, but a defendant who was guilty of
only to departures and not to enhancements or a serious and despicable offense and deserves
adjustments. a lengthy term of imprisonment.
The original judge appears to have been The judgment of sentence is VACATED,
motivated in part by a desire to hammer An- and this matter is REMANDED for further
drews with a long sentence one way or the proceedings before a different district judge, in
other, without paying attention to the dictates accordance with this opinion.
of the law. The irony is that the court would
likely have been able to achieve the result it
desired if it had properly considered the guide-
lines and applied appropriate factors that likely
are present in this case, but now that outcome
will be impeded by the restrictions imposed by
38
See Andrews, 301 F. Supp. 2d at 608 n.2.
39
See 18 U.S.C. § 3742(g)(A)(2) (emphasis
added).
12