Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit
8-24-2004
USA v. Dickerson Precedential or Non-Precedential: Precedential
Docket No. 03-4450
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Recommended Citation "USA v. Dickerson" (2004). 2004 Decisions. Paper 354. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/354
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 2004 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu. PRECEDENTIAL John H. Yauch [ARGUED] Office of Federal Public Defender UNITED STATES 972 Broad Street COURT OF APPEALS Newark, NJ 07102 FOR THE THIRD CIRCUIT Counsel for Appellee
No. 03-4450 OPINION OF THE COURT
UNITED STATES OF AMERICA, Appellant RENDELL, Circuit Judge. v. On November 18, 2002, Robin Dickerson pleaded guilty to importation of ROBIN DICKERSON more than 100 grams of heroin in violation of 21 U.S.C. §§ 952(a) and 960(b)(2), a Class B felony with a five-year mandatory Appeal from the United States minimum sentence. After acceptance of District Court responsibility and minor role adjustments for the District of New Jersey were made, Dickerson’s sentencing range (D.C. Criminal No. 02-cr-00858) under the United States Sentencing District Judge: Guidelines was determined to be 30 to 37 Honorable Katharine S. Hayden months. However, the District Court granted her motion for a downward departure based on aberrant behavior, Argued July 12, 2004 under § 5K2.20 of the Sentencing Guidelines, and Dickerson was sentenced Before: RENDELL, FISHER and to five years of probation. VAN ANTWERPEN, Circuit Judges. The Government appeals the District Court’s judgment of sentence, (Filed: August 24, 2004) urging that probation was an illegal sentence for Dickerson’s offense, and that the downward departure was erroneously George S. Leone [ARGUED] granted. It also asserts that the de novo Office of United States Attorney standard of review contained in the 970 Broad Street, Room 700 Prosecutorial Remedies and Other Tools to Newark, NJ 07102 end the Exploitation of Children Today Counsel for Appellant Act of 2003, Pub. L. No. 108-21, § 401, 117 Stat. 650, 670 (2003) (codified at 18 U.S.C. § 3742(e)(3)(B)) (“PROTECT Act”), applies, notwithstanding the fact thing, but that Dickerson would not meet that the instant departure was granted prior them. Dickerson agreed, apparently to the Act’s effective date. The District hoping to earn enough money to repay her Court had jurisdiction based on 18 U.S.C. overdue student loans. § 3231, and we have jurisdiction to From Chino, Dickerson received consider the Government’s appeal of the $900 in cash, which she used to purchase sentencing order pursuant to 28 U.S.C. § plane tickets for her trip. She departed for 1291 and 18 U.S.C. § 3742(b). For the the Dominican Republic on Thursday, reasons that follow, we will vacate February 21, 2002. When she arrived Dickerson’s sentence, remand, and instruct there, another man named Jose met her and the District Court to impose a sentence that took her to a hotel. Three days later, on falls within the applicable Guideline range. S und ay, Jose brought Dickerso n approximately fifty pre-packed pellets of heroin. Dickerson was able to ingest I. Factual & Procedural Background eleven pellets and vaginally insert sixteen At the time of her offense, Robin more. On Monday, February 25, 2002, she Dickerson was twenty-four years old. She flew back to the United States, arriving at lived with her mother in Staten Island, Newark International Airport, where New York, and she had recently been uninvolved friends were scheduled to pick forced to leave college after defaulting on her up. During a routine interview with her student loans. Over the course of her Customs officers, Dickerson grew nervous adult life, Dickerson was consistently and admitted that she was transporting employed at various jobs, ranging from narcotics. After receiving medical retail sales to electronic data entry. In late attention at a hospital, during which the 2001 and early 2002, Dickerson was heroin was recovered and turned over to employed as a lab clerk at a hospital. Prior law enforcement agents, Dickerson was to February of 2002, Dickerson had never arrested. been arrested. After spending three days in pretrial In the summer of 2001, Dickerson custody, Dickerson was released on bail was approached on a New York City street and placed on home confinement with by a man named Chino, and they electronic monitoring. Immediately exchanged telephone numbers at that time. following her arrest, Dickerson cooperated A few weeks prior to February 21, 2002, with law enforcement agents by describing Chino called Dickerson and asked if she her role in the offense and her knowledge would travel to the Dominican Republic of other individuals involved in the and return with narcotics in exchange for importation scheme. However, her limited an amount of money that could range from knowledge of the operation was not $2,500 to $3,000. Chino mentioned that sufficient to support a “substantial other women would be doing the same assistance” adjustment under § 5K1.1 of
2 the Guidelines. On November 18, 2002, Guidelines. Defense counsel argued that Dickerson entered a plea of guilty to Dickerson’s case was extraordinary, based importation of more than 100 grams of on the considerations listed in the heroin, a class B felony with a five-year commentary following the aberrant mandatory minimum sentence. behavior policy statement. He urged that Dicke rson’s poor pe rform ance on On September 26, 2003, the District psychological tests measuring intelligence, Court sentenced Dickerson. According to along with her history of emotional the Presentence Report (“PSR”) prepared problems including depression, placed her by Dickerson’s probation officer, the situation outside the heartland of drug recommended offense level was 21.1 This courier cases.3 He contended that level took into account downward Dickerson was particularly depressed at adjustments based on the “safety valve” the time of the offense, and that the brief provision of the Guidelines in § 5C1.2, and duration of the offense did not allow her acceptance of responsibility pursuant to § time to reflect on her actions. He also 3E1.1. The District Court granted a emphasized her lack of any prior arrests or further downward adjustment of two levels convictions, her desire to complete based on a finding that Dickerson played a college, and her steady employment minor role in the offense.2 Because this history. In closing, he argued that a term was Dickerson’s first offense, she had no o f im p r i s o n m e n t w o u l d d i s r u p t criminal history points, and she was Dickerson’s ongoing rehabilitative efforts. therefore assigned a criminal history category of I. Thus, the District Court Dickerson and her mother each determined that the appropriate sentencing briefly addressed the District Court during range under the Guidelines was 30 to 37 the hearing, describing Dickerson’s current months. employment and her relationship with her mother. The Government relied upon its At the sentencing hearing, the District Court entertained Dickerson’s motion for a downward departure based on 3 This argument relied in part upon a aberrant behavior under § 5K2.20 of the psychological evaluation of Dickerson that was performed in July and August of 2003. 1 The PSR also explicitly stated in The report estimated that Dickerson was paragraphs 70 and 71 that, pursuant to 18 functioning within a low-average U.S.C. § 3651(a)(1), 21 U.S.C. §§ 952(a) intelligence range, and operated at an early and 960(b)(2)(A), and U.S.S.G. § elementary school level in several subject 5B1.1(b)(1), Dickerson was not eligible areas. It also indicated that she was for a sentence of probation. significantly depressed, with low self- esteem and immaturity issues. The District 2 The Government does not challenge the Court did not explicitly credit or discredit propriety of the minor role adjustment. any of the findings included in this report.
3 written sentencing memorandum, in which it argued that Dickerson’s case was not extraordinary, that the requirements for an factors like making sure my sentence aberrant behavior departure were not met reflects the seriousness of what somebody by the facts here, and that none of the did. My sentence can’t simply ignore the sentencing objectives listed in 18 U.S.C. § importance of providing just punishment. 3553(a) would be furthered by a reduced And to the extent it becomes in an open sentence. courtroom, there are people involved with The District Court ultimately Ms. Dickerson who is going to know what granted Dickerson’s motion for a kind of a sentence she got. The respect for downward departure. The Court’s written the law has to be upheld in the kinds of statement of reasons simply indicates that sentence that is given. the departure was based on § 5K2.20 of Ms. Dickerson’s conduct can’t the Guidelines, permitting departures for repeat itself. The public needs to be aberrant behavior. The reasons for the protected. She needs to be deterred from departure are explained somewhat by the further criminal conduct. People who hear District Court’s oral ruling at the about her sentence need to know that sentencing hearing. Preliminarily, the doing what she did receives appropriate Court acknowledged its obligation to punishment. impose a sentence that furthers the The rehabilitation that is the feature considerations enumerated in 18 U.S.C. § of sentencing for Ms. Dickerson is also 3 5 5 3 ( a ) , i n c l u d in g d e t e r re n c e , important. And Ms. Dickerson’s life one rehabilitation, and the need for appropriate hardly imagine she needs rehabilitation . . punishment. The Court went on to explain . because we have here a young woman its major reasons for departing downward, whose life-style, whose accomplishment namely, because Dickerson was exploited before this criminal offense, whose by those who directed the importation accomplishment since the criminal offense s c h e m e , a n d b e c a u s e s h e h ad are all on the high road. And the criminal accomplished much in her life prior to the conduct is a marked departure . . . . offense, as well as following her arrest. I think as [counsel] points out an We include in the margin the relevant important fact which struck me . . . is, that portion of the sentencing discussion, taken she barely was able to accomplish maybe from the hearing transcript, as it is central a third of what the folks who conscripted to our discussion of the propriety of the or wanted her to import. And the mode of departure in question.4 payment in terms of the amount agreed that might have prompted Ms. Dickerson, is the first time I have seen it by the pellet 4 The District Court stated: that she was going to get paid. It is such a commentary on the exploitation of people So I have to consider important conscripted in these schemes. And the fact
4 statutory prohibition of a probationary sentence. The District Court went on to sentence Dickerson to five years of The Government advances two probation, a departure of eleven levels separate challenges to the sentence from the applicable Guideline range. imposed by the District Court. First, the According to the Court, such a sentence Government contends that a term of indicated that the crime was a serious one, probation is an illegal sentence for a but also would enable Dickerson to defendant convicted of importation of continue her efforts at rehabilitation. The heroin. Second, the Government attacks Court specifically noted its belief that the downward departure for aberrant Dickerson was not likely to engage in behavior, arguing that the departure itself similar criminal behavior again. At no was not warranted, and, in the alternative, time did the Court address, nor did the that the extent of the departure was Government raise, the issue of the unreasonable. We will address both of these issues in turn.
that Ms. Dickerson agreed, the fact that she was treated this way was suggesting to II. The Ban on Probation me she was as far removed from somebody Before reaching the challenges to who had the requisite criminality . . . to do the District Court’s decision to depart this again . . . . downward from the relevant sentencing So the way the offense was range, we will examine whether the committed, the way Ms. Dickerson fell sentence was illegal in light of prohibitions into the hands of the exploitative on probationary sentences contained in traffickers who used her, the way she came applicable criminal statutes. The clean, the way she’s conducted her life Government argues that such a sentence, since, all I believe support a finding that in a case involving importation of heroin this motion has merited her the conduct in in the amount charged here, violates two committing the offense was aberrant as in particular federal laws. Dickerson the guidelines, and just punishment can be disagrees, urging that her satisfaction of accomplished by putting Ms. Dickerson on the prerequisites for the safety valve a substantial period of probation that provision of 18 U.S.C. § 3553 renders her includes careful supervision . . . . immune to the statutory ban on sentences She’s got a job right now, and she’s of probation. Further, as both parties a lot wiser. And I think too embarked recognize, the prosecutor failed to raise upon a professional career where being savvy, doing the right thing and dealing with people in a healthy way will all be of assistance in her behavior, not only with the law but in terms of her supervision.
5 this objection at the sentencing hearing.5 when a plain error is brought to our As we will explain below, we conclude attention on appeal by a defendant who that a probationary sentence under these challenges aspects of his conviction or his circumstances was plainly erroneous. sentence. See, e.g., United States v. Dominguez Benitez, 124 S. Ct. 2333 (2004); United States v. Moore, 375 F.3d A. Standard of Review 259 (3d Cir. 2004). Here, the Government seeks to invoke the plain error doctrine, Where a party does not object or and Dickerson urges that it should not be otherwise bring an error to the attention of permitted to do so. Essentially, Dickerson the district court, we normally review for contends that the third prong of the plain plain error. See United States v. Olano, error analysis, which requires us to find 507 U.S. 725, 732 (1993); Fed. R. Crim. P. that “substantial rights” have been affected 52(b). In order to correct a sentencing by the error, cannot have been met where error not raised before the district court, the Government challenges a sentence that that standard requires us to find that there is too low. Such a position has apparently was: 1) an error; 2) that is plain, or been adopted by two other courts of obvious; and 3) that affects substantial appeals, which have held that allowing rights. Olano, 507 U.S. at 732; United illegal sentences to stand would not result States v. Plotts, 359 F.3d 247, 249 (3d Cir. in manifest injustice where the sentence is 2004). If those three requirements are met, less severe than it should have been. See it is within our discretion to correct the United States v. Posters ‘N’ Things, Ltd., error if it was one that “seriously affect[ed] 969 F.2d 652, 663 (8th Cir. 1992) the fairness, integrity, or public reputation (refusing to find plain error where the of judicial proceedings.” Johnson v. sentence imposed violated the statutory United States, 520 U.S. 461, 467 (1997) minimum); United States v. Garcia- (internal quotation marks omitted). Pillado, 898 F.2d 36, 39 (5th Cir. 1990) In the criminal context, we are most (same). 6 often called upon to apply this standard As the parties recognize, however, six other courts of appeals have firmly rejected Dickerson’s argument and applied 5 We note that the prosecutor also could have raised this issue with the District 6 Court through a motion pursuant to Although neither of these decisions has Federal Rule of Criminal Procedure 35(a), been explicitly overruled, we question the which allows the Government to seek continuing force of their reasoning in light correction of a clearly erroneous sentence of the Supreme Court’s subsequent within seven days of sentencing. rejection of the “manifest injustice” test However, the prosecutor failed to file such for plain error, upon which both decisions a motion. seem to rest. See Olano, 507 U.S. at 735.
6 the plain error standard in the context of was convicted under 21 U.S.C. §§ 952(a) criminal appe als bro ugh t by the and 960(b)(2) for importing over 100 Government. See United States v. grams of heroin, a crime that is Gordon, 291 F.3d 181 (2d Cir. 2002); categorized as a class B felony pursuant to United States v. Perkins, 108 F.3d 512 (4th 18 U.S.C. § 3559(a)(2). According to one Cir. 1997); United States v. Barajas- statutory provision, a defendant who is Nunez, 91 F.3d 826 (6th Cir. 1996); found guilty of a class B felony may not be United States v. Zeigler, 19 F.3d 486 (10th sentenced to a term of probation. 18 Cir. 1994); United States v. Edelin, 996 U.S.C. § 3651(a)(1). And, according to F.2d 1238 (D.C. Cir. 1993); United States another statutory provision, a defendant v. Rodriguez, 938 F.2d 319 (1st Cir. who is found guilty under 21 U.S.C. § 952 1991). According to this majority view, of importing “100 grams or more of a the Government is equally entitled to seek mixture or substance containing . . . plain error review because the language of heroin” cannot be placed on probation. 21 Rule 52(b) does not limit which party may U.S.C. § 960(b)(2). The Government raise a plain error before an appellate relies on these two statutory prohibitions court. Further, the Government’s right to on probationary sentences, both of which seek justice on behalf of the accuser, and facially apply to Dickerson’s offense, to society, in a criminal case can certainly be argue that the District Court committed “substantially affected” where a plainly plain error in failing to impose a sentence erroneous sentence that is inappropriately of imprisonment. light is imposed. See Gordon, 291 F.3d at Dickerson’s response to this 193; Perkins, 108 F.3d at 517. argument is that her eligibility for the We are persuaded that the majority statutory “safety valve” provision in 18 position is the sounder one, and we U.S.C. § 3553(f), which exempts a subset conclude that the language of the Rule, as of defendants from applicable statutory well as the aforesaid policy underlying it, mandatory minimum sentences under supports allowing the Government to raise certain circumstances,7 renders the a sentencing error on appeal, even where that error was not brought to the attention 7 of the District Court. Thus, we will review 18 U.S.C. § 3553(f), which sets forth a the District Court’s imposition of a “limitation on applicability of statutory probationary sentence for plain error, minimums in certain cases,” states the applying the typical plain error analysis set following: forth in Olano. Notwithsta nding a ny o th er provision of law, in the case of an B. Discussion offense under [certain sections of the Controlled Substances Act, As we have indicated, Dickerson including 21 U.S.C. § 960,] the
7 prohibitions on probation inapplicable to her. Alternatively, Dickerson urges that even if the District Court erred in court shall impose a sentencing her to probation, we should not sentence pursu ant to reverse for plain error because she could guidelines promulgated by have been sentenced to time served based the United States Sentencing on her three days of pretrial confinement. Commission under section According to Dickerson, such a sentence, 994 of title 28 without followed by five years of supervised regard to any statutory release, would have had the same practical minimum sentence, if the effect as a sentence of probation; court finds at sentencing, therefore, says Dickerson, any error here after the Government has was harmless and did not affect substantial been afforded the rights. opportunity to make a recommendation, that– Although our court has not (1) the defendant does not have previously been asked to consider the more than 1 criminal history point, interplay between the three statutes cited as determined under the sentencing by the parties as relevant to the issue here, guidelines; the question does not call for a complex (2) the defendant did not use analysis. As other courts of appeals have violence or credible threats of indicated, the answer is dictated by violence or possess a firearm or common sense and basic principles of other dangerous weapon (or induce statutory construction. Four other courts another participant to do so) in of appeals have adopted the view espoused connection with the offense; by the Government here, holding that (3) the offense did not result in probationary sentences are barred where a death or serious bodily injury to any person; (4) the defendant was not an evidence the defendant has organizer, leader, manager, or concerning the offense or offenses supervisor of others in the offense, that were part of the same course of as determined under the sentencing conduct or of a common scheme or guidelines and was not engaged in plan, but the fact that the defendant a continuing criminal enterprise, as has no relevant or useful other defined in section 408 of the information to provide or that the Controlled Substances Act; and Government is already aware of the (5) not later than the time of the information shall not preclude a sentencing hearing, the defendant determination by the court that the has truthfully provided to the defendant has complied with this Government all information and requirement.
8 defendant is convicted of a class B felony, F.3d 1321 (9th Cir. 1997); United States v. or of violating 21 U.S.C. § 960(b)(2), Belt, 89 F.3d 710 (10th Cir. 1996); United notwithstanding eligibility for the safety States v. Snelling, 961 F.2d 93 (6th Cir. valve.8 See United States v. Green, 105 1991); United States v. Thomas, 930 F.3d 526 (7th Cir. 1991). We will likewise hold that such a 8 Dickerson urges that there is a circuit sentence was improper here, for reasons split with regard to this question, and cites that were ably set forth by the Court of decisions of the First, Fourth, and Eleventh Appeals for the Ninth Circuit in Green. Circuits as supportive of her position. There, the defendant was convicted under However, all of the cases mentioned by 21 U.S.C. § 841 – a different controlled Dickerson are inapposite given the substances law that, like § 960(b)(2), question we consider here. It is true that contained both a mandatory minimum and the First Circuit has affirmed probationary a prohibition on probation – and was also sentences where the relevant offenses eligible for the safety valve created by § included statutory bars on probation, but 3553(f). In Green, the court explained: this particular challenge to those sentences Green argues that there is no was not raised or examined in those cases, difference between a statutory each of which involved unrelated minimum term of imprisonment challenges to the convictions or sentences. and a ban on probation, and See, e.g., United States v. Sclamo, 997 therefore that the language of § F.2d 970 (1st Cir. 1993) (examining only 3553(f) allows the sentencing judge w h e t h e r t he de fend ant’s f amil y to disregard both. If this were so, circumstances rendered his case unusual then § 841(b) would create two enough to support a downward departure). “minimum sentences.” The ban on The same is true of the authority relied on probation in § 841 would be from the Eleventh Circuit. See United unnecessary if there were not a States v. Pippen, 903 F.2d 1478 (11th Cir. way, such as § 3553(f), to dip 1990) (reviewing a sentence of community confinement imposed in a case where the defendant rigged bids in violation of the Sherman Act where the only challenge was controlled substances statutes were not based on any statutory bans on amended to include explicit bans on probation, but instead was based on an probation. See United States v. Daiagi, argument related to the policies underlying 892 F.2d 31 (4th Cir. 1989). As a result, the Guidelines applicable to this type of its conclusion has been questioned and offense). Finally, although the Fourth soundly rejected by other courts Circuit has countenanced a probationary considering such a question after those sentence in the context of a similar drug amendments became effective. See, e.g., offense, it did so before the relevant Thomas, 930 F.2d at 528.
9 below the 10-year minimum Thus, the District Court committed imprisonment. To suggest that a error in sentencing Dickerson to probation, court can disregard both the and we are convinced that the error was minium sentence and the probation “plain,” given the clarity of the statutory ban would render the ban on language and the notice included in the probation in § 841 entirely PSR. As to the third prong of the plain meaningless, since every time a error analysis, we are persuaded that c o urt a v oi de d t he 10 -ye a r substantial rights were affected here, as minimum, it could also disregard Dickerson’s sentence obviously would the probation ban. Construing § have been different had the error not been 841(b) to give effect to every made, and Congress’s interest in provision, it appears that § 841 imprisoning certain drug offenders is a establishes the probation ban as the “right” to which the citizenry is entitled. ultima te floor in case th e We will not speculate as to what sentence mandatory minimum sentence is the District Court would have imposed somehow avoided. We therefore absent this error, since any sentence of hold that the “notwithstanding any imprisonment – even one of time served – other provision of law” language in would be qualitatively different from a § 3553(f) is tied only to the ability probationary sentence. See United States to disregard statutory minimum v. Granderson, 511 U.S. 39, 51 (1994) terms of imprisonment; any other (noting that probationary sentences and reading would eviscerate this terms of imprisonment followed by ultimate floor in § 841. supervised release are “sentences of unlike character”). Therefore, we conclude that Green, 105 F.3d at 1323-24; see also the District Court committed plain error in Thomas, 930 F.2d at 528 (containing a sentencing Dickerson to probation, and similar discussion of § 841 and § 3553(e), that the error seriously affected the which includes language resembling that integrity of the proceedings. Accordingly, used in § 3553(f) and provides a second on remand, the District Court will be basis upon which a district court may instructed to impose a sentence of a term impose a sentence below the statutory of imprisonment. minimum). Adopting the reasoning quoted above, we hold that D ickerson’s probationary sentence violates the III. The Downward Departure statutory prohibition on sentences of probation cited by the Government and The second set of issues raised by referenced by the Probation Officer in the the Government’s appeal involves PSR, despite Dickerson’s eligibility for the challenges to the departure for aberrant safety valve provision of 18 U.S.C. § 3553.
10 behavior.9 We cannot remand for r e s e n t e n c i n g b a s e d o n t h e p l a i n ly erroneous probationary sentence without reaching these issues, as we must also 9 instruct the District Court whether, and to We will address the Government’s what extent, it can depart for aberrant a rg u m ents r e g a r d in g D i c k e rson’s behavior when it resentences Dickerson. downward departure notwithstanding the In considering these issues, not only must fact that they involves sentencing issues we examine the merits of the departure and that are completely based on the Federal the extent to which the District Court Sentencing Guidelines, which have reduced Dickerson’s sentence, but we recently come under attack in the wake of must also preliminarily consider whether the Supreme Court’s decision in Blakely v. and how the recently-enacted PROTECT Washington, 124 S. Ct. 2531 (2004). We Act impacts our standard of review in do so because the question here involves cases where departures have been granted the application of a downward departure, prior to the Act’s effective date. rather than an upward departure or a sentencing enhancement. Thus, unless the entire Guidelines regime falls, the decision A. Standard of Review in Blakely is not clearly implicated here. Further, in response to questioning by the Before Congress enacted the Court at oral argument, the parties PROTECT Act on April 30, 2003, we conceded that no Blakely-related problems reviewed a sentencing court’s decision to are likely to arise on the facts of this case. depart from the applicable Guideline range Additionally, we note that we might for an abuse of discretion, granting not normally address both the issue of the substantial deference to the district courts. statutory prohibition on probation, as well See Koon v. United States, 518 U.S. 81, 98 as the propriety of a downward departure, (1996); United States v. D’Amario, 350 since a finding that no departure was F.3d 348, 356 (3d Cir. 2003). The warranted under the Guidelines would amendments contained in the PROTECT render discussion of the ban on probation Act modified our standard of review, unnecessary. But, given the uncertain requiring that we consider de novo future of the Guidelines, we find it prudent sentences that fall beyond the range to reach both issues now. On specified by the Guidelines. Although resentencing, the District Court may wish to announce an appropriate alternative non-Guideline sentence. See, e.g., United 960(b)(2) will continue to limit the District States v. Leach, No. 02-172-14, 2004 WL Court’s discretion with respect to 1610852, at *4 (E.D. Pa. July 13, 2004). Dickerson’s sentence, even if the However, such a sentence must include a G u i d e l i n es a r e u l ti m a t e ly h e ld term of imprisonment, as the ban on unconstitutional by this Court or the probation set forth in 21 U.S.C. § United States Supreme Court.
11 numerous other courts of appeals have amended provision, we still review any already examined the PROTECT Act’s findings of fact made by the District Court impact on their standard of review, we for clear error. Id. The only question have not yet spoken on the manner in before us, then, involves the effect of the which the new standard should be applied. de novo review provision, which applies to d e t e r m in a t i o n s m a d e u n d e r § The relevant statutory review 3742(e)(3)(A) and (B). provision, as amended by the PROTECT Act, directs courts of appeals to review The Government asserts that the sentences that are “outside the applicable application here of the standard articulated guideline range” de novo. 10 Under this in the PROTECT Act does not run afoul of the constitution, meaning that it can be
10 The relevant language from 18 U.S.C. § 3742(e) reads as follows: unreasonable degree from the applicable guidelines range, Upon review of the record, the having regard for the factors court of appeals shall determine to be considered in imposing a whether the sentence– sentence, as set forth in (1) was imposed in violation section 3553(a) of this title of law; and the reasons for the (2) was imposed as a result of an imposition of the particular incorrect applic ation o f the sentence, as stated by the sentencing guidelines; district court pursuant to the (3) is outside the applicable provisions of section 3553(c) guideline range, and .... (A) the district court failed to provide the written statement The court of appeals shall give due regard of reasons required by section to the opportunity of the district court to 3553(c); judge the credibility of the witnesses, and (B) the sentence departs from shall accept the findings of fact of the the applicable guideline range district court unless they are clearly based on a factor that– erroneous and, except with respect to (i) does not advance the determinations under subsection (3)(A) or objectives set forth in (3)(B), shall give due deference to the section 3553(a)(2); or district court’s application of the (ii) is not authorized under guidelines to the facts. With respect to section 3553(b); or determinations under subsection (3)(A) or (iii) is not justified by the (3)(B), the court of appeals shall review de facts of the case; or novo the district court’s application of the (C) the sentence departs to an guidelines to the facts.
12 applied to cases on appeal in which the 1104-06; Saucedo-Patino, 358 F.3d at 792- defendants were sentenced prior to the 93; Stockton, 349 F.3d at 764 & n.4; Act’s effective date, and that the Act Mallon, 345 F.3d at 945-47. requires us to review de novo the propriety We take this opportunity to join our of a departure. Dickerson, on the other sister circuits by holding that the hand, contends that the Ex Post Facto PROTECT Act’s de novo review provision clause prevents us from applying the does not implicate the Ex Post Facto amended standard of review to her case, as Clause when applied to an appeal her sentence was imposed prior to April involving a defendant sentenced prior to 30, 2003. Alternatively, she urges that the Act’s effective date. Like the other where the district court departs based on a courts that have considered identical factor explicitly permitted by the challenges to the review provision of the Guidelines, such as aberrant behavior, we PROTECT Act amendments, we conclude should review only for abuse of discretion. that the change to our standard of review is We reject both of Dickerson’s arguments. essentially a procedural change, rather than So far, nine other courts of appeals a substantive one. See, e.g., Kostakis, 364 have published opinions in which they F.3d at 51; Mallon, 345 F.3d at 947. The have applied the de novo standard set forth amendment does not increase the in the PROTECT Act to departure cases punishment for an existing offense, modify that were pending on appeal when the the circumstances under which a departure amendments became effective. See United may be granted, criminalize previously States v. Bell, 371 F.3d 239 (5th Cir. innocent behavior, change the elements of 2004); United States v. Kostakis, 364 F.3d an offense, or alter the facts that require 45 (2d Cir. 2004); United States v. proof at trial. Mallon, 345 F.3d at 946. Daychild, 357 F.3d 1082 (9th Cir. 2004); Instead, the new standard of review merely United States v. Saucedo-Patino, 358 F.3d “changes who within the federal judiciary” 790 (11th Cir. 2004); United States v. may weigh in on the decision of whether Thurston, 358 F.3d 51 (1st Cir. 2004); the legal standards for a departure are met, United States v. Andrews, 353 F.3d 1154 insofar as it “increase[s] the number of (10th Cr. 2003); United States v. Stockton, judges who must consider [the] issue.” Id. 349 F.3d 755 (4th Cir. 2003); United Under these circumstances, no Ex Post States v. Mallon, 345 F.3d 943 (7th Cir. Facto concerns arise when we apply the 2003); United States v. Hutman, 339 F.3d new standard of review to cases that were 773 (8th Cir. 2003). Six of those opinions pending before us when the PROTECT specifically examine, and reject, Ex Post Act took effect. Facto challenges to the application of the Dickerson contends, however, that new review provisions to pending appeals. even under the PROTECT Act we should See Bell, 371 F.3d at 241-42; Kostakis, review for abuse of discretion here. Her 364 F.3d at 51-52; Daychild, 357 F.3d at primary argument is based on a flawed
13 reading of 18 U.S.C. § 3742(e)(3)(B). regarding our standard of review must fail. Specifically, she urges that we need not The provision of the PROTECT Act conduct any inquiry under (B)(i) or (B)(ii) that is relevant here raises four distinct if the departure is based on a factor that is inquiries in which we, as a reviewing explicitly permitted by the Guidelines – for court, are to engage: first, did the district example, aberrant behavior. Therefore, court provide an adequate written she reasons, there is no de novo review in statement of reasons, as required by 18 a case such as hers. However, upon closer U.S.C. § 3553(c), see 18 U.S.C. § examination of the language of § 3742(e)(3)(A); second, does the sentence 3742(e)(3)(B), see supra note 10, we depart from the Guideline range based on observe that Dickerson’s argument, a factor that advances the objectives set focused as it is on subsections (i) and (ii), forth in 18 U.S.C. § 3553(a)(2), and is ignores subsection (iii). The clear authorized under 18 U.S.C. § 3553(b), see language of § 3742(e)(3)(B) includes three 18 U.S.C. § 3742(e)(3)(B)(i), (ii); third, disjunctive subsections, and, in order to does the sentence depart from the uphold the downward departure in this Guideline range based on a factor that is case, we must determine that each of the three subsections of § 3742(e)(3)(B) are satisfied. Thus, we are required to examine de novo, under subsection (iii), whether the aberrant behavior departure States v. Bell, 371 F.3d 239 (5th Cir. was justified by the facts of Dickerson’s 2004). Under the Fifth Circuit’s ultimate case. Dickerson’s reading of § approach, the considerations enumerated 3 7 4 2 ( e ) ( 3 ) (B ) i s i l lo g i c a l a n d in subsections (i) and (ii) are automatically unsupported.11 Accordingly, her argument fulfilled where the departure factor is one that is listed in the Guidelines, but de novo review of whether a departure is justified 11 Dickerson relies heavily on a decision by the facts of the case is still required. of the Court of Appeals for the Fifth Bell, 371 F.3d at 243-44. Thus, the Fifth Circuit in which that court appeared to Circuit no longer follows the approach adopt her position regarding review of suggested by Dickerson; indeed, she has departures based on factors included in the pointed us to no other courts that do. Cf. Guidelines. See United States v. Bell, 351 Thurston, 358 F.3d at 73 (describing its F.3d 672 (5th Cir. 2003). However, the similar view that factors listed in the Fifth Circuit subsequently withdrew that Guidelines as permissible grounds for opinion and issued a new decision departure automatically satisfy the first superseding it, modifying the court’s two subsections of § 3742(e)(3)(B), but approach to cases like this one to bring it that a de novo inquiry is still necessary to in line with the language of the statute and determine whether subsection (iii) is the decisions of other courts. See United satisfied as well).
14 justified by the facts of the case,12 see 18 properly granted.14 See Kostakis, 364 F.3d U.S.C. § 3742(e)(3)(B)(iii); and fourth, if at 51, Andrews, 353 F.3d at 1155-56. a departure is warranted, was the extent of We need not address whether the the departure granted by the district court District Court’s written statement was reasonable, see 18 U .S.C . § sufficiently specific in light of the 3742(e)(3)(C). 13 requirements in 18 U.S.C. § 3553(c), as In examining the first three the parties do not dispute the adequacy of questions, we are to engage in de novo the written statement. The parties also do review. However, as the subsection of § not devote significant attention to the 3742(e)(3) that mandates the fourth second question described above, but, as question is not impacted by the PROTECT aberrant behavior is a factor that was Act’s de novo standard of review considered by the Sentencing Commission provision, we are to continue to apply an and included in the Guidelines as a abuse of discretion standard as we review permissible basis for departures, we have the extent of departures that have been little difficulty concluding that it is a factor that advances the objectives of § 3553(a)(2) and is authorized under § 3553(b). See, e.g., Thurston, 359 F.3d at 12 At this third stage of our review, we will only review whether the type of 14 departure granted is generally warranted Of course, we will only engage in this by the facts of the case; we will not review of the extent of a departure in cases consider whether the extent of the where, under the provisions of 18 U.S.C. § departure is appropriate. See, e.g., Bell, 3742(a) and (b), we have jurisdiction to 371 F.3d 243; Thurston, 358 F.3d at 73; hear such a challenge in the first instance. Andrews, 353 F.3d at 1156. Here, our jurisdiction to engage in a review of both the propriety and the extent 13 Most courts to consider this of Dickerson’s downward departure is PROTECT Act question have only clearly based upon § 3742(b)(3), as the examined whether a departure is justified, Government is appealing a sentence that and have not discussed the first two falls below the relevant Guideline range. subsections of § 3742(e)(3)(B) in great Thus, this case does not present us with the detail or considered how the analysis under jurisdictional questions that would those subsections might be impacted in accompany a post-PROTECT Act appeal cases involving factors included in the by a defendant of a district court’s Guidelines. See, e.g., Hutman, 339 F.3d at downward departure ruling. See, e.g., 775. However, our view of the four United States v. Linn, 362 F.3d 1261 (9th requisite inquiries is dictated by the Cir. 2004); cf. United States v. Parker, 902 statute, and is consistent with each of the F.2d 221 (3d Cir. 1990); United States v. nine opinions of other courts listed above. Denardi, 892 F.2d 269 (3d Cir. 1989).
15 73. Having disposed of the first two inquiries” when considering a departure inquiries, our decision will turn on whether for aberrant behavior under § 5K2.20. the departure for aberrant behavior was United States v. Castano-Vasquez, 266 justified by the facts of Dickerson’s case, F.3d 228, 230 (3d Cir. 2001). One inquiry and, if it was justified, whether the extent asks “whether the defendant’s case is of the departure was reasonable. extraordinary,” and the other asks “whether his or her conduct constituted aberrant behavior.” Id. Under the relevant B. Discussion Guideline provisions, the sentencing court is free to address these inquiries in any We first examine the standards order it chooses, as long as it considers govern ing depa rtures for aberrant both questions. Id. at 234. As we will behavior, as they are described in the explain below, we do not think that the Guideline provision itself and applied in District Court adequately addressed either our case law.15 As we have previously of these requisite inquiries when it instructed, a sentencing court is required to considere d Dickerson’s downward engage in “two separate and independent departure motion.16 As is true whenever a court 15 In her motion for a downward considers departing from a Guideline departure, Dickerson originally sought a sentencing range, the District Court was departure based on aberrant behavior required to find that Dickerson’s case was under § 5K2.20 or, more generally, based extraordinary, or “outside the heartland” of on a combination of factors under § 5K2.0. cases, before it departed downward. See However, the “combination of factors” Koon v. United States, 518 U.S. 81, 95-96 departure was not mentioned at sentencing by counsel or by the District Court. Here, 16 Dickerson focuses almost exclusively on Preliminarily, we note that a departure aberrant behavior as well. The other for aberrant behavior is prohibited in factors cited as potentially relevant under certain circumstances, which are described a “combination of factors” theory – for in § 5K2.20. None of those circumstances example, Dickerson’s history of stable are applicable here. One of the situations employment and her attempts to cooperate listed, in which such a departure is barred, with authorities – are all factors that are is where “the offense of conviction is a subsumed within the aberrant behavior serious drug trafficking offense.” analysis. Thus, because Dickerson cites no Dickerson’s crime is not considered to be additional factors beyond the aberrant a “serious drug trafficking offense,” as behavior considerations, we would only defined in Application Note 1, because she place our stamp of approval on the District is eligible for the safety valve exception to Court’s departure ruling if her case the mandatory minimum described in warrants an aberrant behavior departure. U.S.S.G. § 5C1.2 and 18 U.S.C. § 3553(f).
16 (1996); Castano-Vasquez, 266 F.3d at 232. clear, given her completion of a job In Application Note 2 to § 2.20 of the training program and her consistent Guidelines, the Sentencing Commission employment history. Her ability to has listed five considerations that may be function in an advanced academic relevant to the extraordinariness inquiry in environment is also apparent, given the aberrant behavior cases. The listed factors fact that she completed high school and include the defendant’s: “(A) mental and spent two full years attending college. emotional conditions; (B) employment Further, the District Court quite obviously record; (C) record of prior good works; perceived Dickerson to be a capable young (D) motivation for committing the offense; woman, and was impressed by her past and (E) efforts to mitigate the effects of accomplishments and her ability to cope the offense.” U.S.S.G. § 2.20, cmt. n.2. with life in a positive manner after her These factors are “helpful guideposts,” arrest. Therefore, we cannot conclude that rather than mandatory considerations, see her mental and emotional conditions alone Castano-Vasquez, 266 F.3d at 235, but are dire enough to render her case they are especially instructive as we set out extraordinary. to review departures like this one under the The four remaining considerations new de novo standard. The District Court do not persuade us that Dickerson’s did not make any finding, either explicitly situation falls outside the heartland of or implicitly, as to the extraordinary nature comparable drug cases. Although of Dickerson’s case, as compared to other Dicke rson’s record of consistent cases involving similar crimes. employment, including her ability to After reviewing the record before secure and retain a job that she enjoys as us, we are not convinced that Dickerson’s the proceedings related to her offense have case is an extraordinary one. She relies moved along, is commendable, it does not heavily upon a psychological evaluation appear to be exceptional for someone her performed prior to her sentencing to argue age. She has not offered any examples of that her mental and emotional conditions prior good works that would distinguish are out of the ordinary. The conclusions her from typical defendants convicted of contained in the report indicate that narcotics-related offenses. Her motivation Dickerson intellectually functions at a for committing the offense was, at its core, level that is far lower than her age would a desire to improve her financial situation, imply, and that she has suffered from bouts which we believe is all too common for of depression that were at times severe. people who commit this type of drug While these findings might give us pause, courier offense. And finally, while she we must contrast them with the facts that turned herself in and attempted to we glean from the rest of the record. For cooperate when she was questioned by example, Dickerson’s ability to function in Customs officials, her efforts in this regard an adult-level working environment is do not rise to a level extraordinary enough
17 to support a departure. criminal occurrence or transaction constitutes “aberrant behavior” if it: “(A) Accordingly, we think that was committed without significant consideration of the circumstances of this planning; (B) was of limited duration; and case, guided by the factors listed by the (C) represents a marked deviation by the Sentencing Commission, do not reasonably defendant from an otherwise law-abiding lead to the conclusion that Dickerson’s life.” U.S.S.G. § 5K2.20, cmt. n.1. All case is extraordinary. We have found that three prongs must be satisfied. Here, the aberrant behavior departures were not District Court limited its discussion to the appropriate in cases involving ordinary third factor and made no explicit or facts and circumstances in situations that implicit findings with respect to the other were comparable to this one. See, e.g., two. On appeal, the Government does not Castano-Vasquez, 266 F.3d at 230-31 contest the fact that this offense was a (finding no showing of extraordinariness “marked deviation” from Dickerson’s where the defendant in a heroin otherwise law-abiding life. However, the importation case was in his fifties, did other two requirements – regarding volunteer work in his community, suffered planning and duration – were not from medical problems, and imported considered by the District Court, and we drugs only once to gain money to support will briefly discuss them both. his family after losing his ability to provide for them by farming). As the sentencing The actual planning undertaken by judge noted, “Dickerson fits the profile of Dickerson in connection with this offense a[] mule.” The District Court did not included the following: she engaged in a discuss factors that would remove preliminary discussion of the details of her Dickerson’s case from the heartland of involvement with Chino a few weeks prior defendants who commit comparable drug to her trip; she acquired $900 from Chino offenses, and we do not find any basis for and used it to purchase her plane ticket; a finding that Dickerson’s situation is and she arranged to have a friend pick her extraordinary. up from the airport when she returned to the United States. Additionally, as the Even if we were to agree with Government notes, we might also consider Dickerson that the facts of her case were the reasonably foreseeable planning exceptional, we would be compelled to undertaken by others involved in the reject her downward departure based on offense, since § 1B1.3(a)(1)(B) of the our analysis pursuant to the other inquiry Guidelines would classify such activity as mandated by § 5K2.20 and Castano- “relevant conduct” for sentencing Vasquez. In analyzing whether purposes. Dickerson’s behavior was aberrant, a sentencing court must engage in a three- Regardless of whether we look to pronged analysis. According to planning undertaken by others like Chino Application Note 1 to § 5K2.20, a single and Jose in connection with Dickerson’s
18 trip, we do not consider this to be a case 1098 n.7 (11th Cir. 2004) (indicating that, where the defendant committed the offense in the context of a criminal statute related without significant planning. Dickerson to coercing minors to engage in sexual had weeks to prepare for the offense, and activity, two ninety-m inute phone she engaged in preparatory behavior conversations were not “of limited during that time; she was not simply duration”). Additionally, Dickerson had approached at the airport just before four days for further reflection once she checking her luggage and asked to carry a arrived in the Dominican Republic. As we suitcase onto the plane. Moreover, other see it, in the context of a courier’s role in courts have rejected departure requests on a drug importation scheme, Dickerson’s this basis where the planning involved was offense cannot be considered “of limited far less significant than it was here. See, duration” where her involvement spanned e.g., United States v. Castellanos, 355 F.3d a period of several weeks. 56 (2d Cir. 2003) (upholding a district As we noted above, the District court’s refusal to depart where the Court did not make findings regarding the defendant made plans to buy heroin one amount of planning that was involved in week in advance and arrived at the the offense, the duration of Dickerson’s transaction with a large amount of cash involvement in the offense, or the with which to make the purchase). extraordinary nature of this case. As is As to the duration of the offense, clear from our previous decisions, and the record does not reveal exactly how from the Guidelines themselves, it is many weeks separated the phone imperative that district courts demonstrate conv ersatio n between Chino and that they have engaged in the appropriate Dickerson, during which the plan was first analysis and made the requisite findings discussed, from the date when Dickerson before deciding whether to grant a left for the Dominican Republic. departure. Considering the record before However, we think that a period of us and the relevant case law, we see no “several weeks” exceeds what we would reaso nable basis for finding that view as a limited duration in this context. Dickerson’s actions “lacked significant A few weeks is sufficient to give a planning” or were “of limited duration,” or defendant time to consciously reflect on that her situation is removed from the her actions and consider whether she heartland of cases involving minor should engage in the relevant criminal participants in drug importation schemes. behavior. See United States v. Colace, We therefore conclude that no downward 126 F.3d 1229, 1231 (9th Cir. 1997) departure for aberrant behavior is justified (stating that offense was not of limited by the facts of this case, and we will duration where defendant had two months instruct the District Court to resentence “to reflect on his criminal conduct”); cf. Dickerson to a term of imprisonment that United States v. Orrega, 363 F.3d 1093, falls within the applicable Guideline
19 range.17 will vacate Dickerson’s sentence and remand for resentencing consistent with this opinion, at which time the District IV. Conclusion Court shall impose a sentence within the appropriate Guideline range of 30 to 37 As we have explained above, the months. District Court committed plain error in sentencing Dickerson to a term of probation in the face of explicit statutory prohibitions on such a sentence. The District Court also erred in granting a downward departure for aberrant behavior on the facts of this case. Accordingly, we
17 Because we conclude that no downward departure is warranted, we need not engage in an examination of whether the extent of the departure granted here was unreasonable as the Government alternatively argues. However, we feel compelled to note that the District Court granted a staggering eleven-level departure without any explanation of why such a departure was called for, and thus reasonable, under these circumstances. The Court did note a desire to avoid any interruption to Dickerson’s rehabilitation that would be caused by a sentence of imprisonment. However, under our precedent, sentencing courts are instructed to arrive at a reasonably sized departure by analogizing to other Guideline provisions, and we have remanded where district courts have failed to provide an adequate explanation. See United States v. Jacobs, 167 F.3d 792, 800 (3d Cir. 1999) (citing United States v. Kikumura, 918 F.2d 1084, 1113 (3d Cir. 1990)). But, given our determination that the departure was not warranted in the first instance, we need not rule on this issue.