United States v. Lisa Ann Minutoli

374 F.3d 236, 2004 U.S. App. LEXIS 14100, 2004 WL 1516644

• Court: Court of Appeals for the Third Circuit
• Decided: July 8, 2004
• Docket: 02-3108
• Status: Published

Opinions

BARRY, Circuit Judge.

We are called upon to decide whether we have jurisdiction to review a district court’s discretionary refusal to downward depart from the applicable Sentencing Guideline range when that refusal is based in whole or in part on an alleged mistake of fact. The well-established precedent of this Court mandates the answer to this question, and the answer is a ringing “no.”

I. INTRODUCTION

On August 29, 2001, a federal grand jury returned a two-count indictment against Lisa Ann Minutoli (“Minutoli”). Count One charged Minutoli with possession with intent to distribute a mixture and substance containing a detectable amount of 3,4-methylenedioxymethamphetamine (MDMA), in the form of “Ecstasy” tablets, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C); and Count Two charged unlawful importation into the United States of said tablets, in violation of 21 U.S.C. §§ 952(a) and 960(b)(3). Minutoli pled guilty to Count Two, and Count One was subsequently dismissed.

It was not disputed that under the United States Sentencing Guidelines (USSG), Minutoli’s base offense level was 29 and her criminal history category was I, resulting in a range of 87-108 months’ imprisonment. Prior to sentencing, however, Mi-nutoli moved for a downward departure, based on reduced mental capacity (USSG § 5K2.13) and coercion and duress (USSG § 5K2.12), and for a two-level reduction in her offense level as a minor participant. (USSG § 3B1.2(b)). The District Court denied these requests and, on July 25, 2002, sentenced Minutoli to 87 months’ imprisonment, to be followed by three years’ supervised release. In denying the downward departure, the District Court stated, in part:

[WJhile I recognize my ability to depart under 5K2.12, without threat of physical injury resulting from unlawful actions of a third party, which I don’t believe was in the testimony, or substantial damage to property resulting from unlawful action of a third party, the coercion and duress does not rise to the level that warrants departure, (emphasis added).

In denying her request for an adjustment for minor role, the District Court stated:

My understanding of this case and what I believe has been demonstrated by the evidence is that the defendant was not just a mere, to use an adjective, courier. Her importance to the success of the venture was vital.

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But, as I indicated, I do not believe, based on the evidence, that you were a minor participant because of your importance, your knowledge of these — the nature and scope of the enterprise.

Minutoli raises two issues on appeal. First, she contends that the District Court made a factual error in concluding that the testimony at the sentencing hearing did not support a finding of physical threats and, thus, she was wrongly denied a downward departure under § 5K2.12. Second, she contends that as a “mere” drug courier, she was entitled to a downward adjustment for her minor role in the offense.¹ We will affirm the judgment and sentence.

II. BACKGROUND

Sometime in the spring of 2001, Minuto-li, a long-time drug user, was recruited as a drug courier by a woman named Christine Segetti, whom she had met through her personal drug dealer. Segetti offered Minutoli $20,000, in return for which she traveled from Los Angeles to Paris and then to Amsterdam, where she was given Ecstacy tablets by a man named Joseph, and returned with the drugs to New York City.² While in New York City, she gave the drugs, minus a small portion for herself, to one Thomas-Elan. After spending about a week-and-a-half with Thomas-Elan and Segetti, she returned to Los Angeles, where she met a man she knew as David, but whose name was, in fact, Elly, and with whom she carried on a romantic relationship for four months.

Soon after they met, David informed Minutoli that the organization with which they were affiliated was an international drug ring and that he planned to break away and begin his own smuggling operation. Thus, in June 2001, David and Minu-toli traveled to Tijuana, Mexico, where they met with persons from several countries and planned the operation, although Minutoli disclaimed any role in the planning. After returning from Tijuana, David told Minutoli that she was to go to Germany and transport drugs back to the United States. Minutoli did not want to make the trip and argued with David about it, angering him to the point that he threw a car stereo at her. When David threatened to kill her, she agreed to go.- The night before she left, and to assure that she would do what she had agreed to do, David placed his gun on top of a bedroom dresser before getting into bed with her. David was often verbally abusive to her, physically threatened her, and told her that he had killed people before. Minutoli felt trapped by him both physically and financially, in part because he continuously provided drugs to her, escalating her addiction. In sum, she claimed, he “broke” her.³

On July 24, 2001, David drove Minutoli to the Los Angeles airport and warned her that people would be watching her while she was in Germany. Upon her arrival in Germany, she checked into a hotel and informed her contact in Amsterdam, a man named Daniel, of her location. Daniel provided her with money for her hotel and periodically stopped by to check on her. Additionally, David phoned her nearly every day. The day before her return to the United States, Daniel provided her with a suitcase for the trip.

Upon her arrival at the Pittsburgh International Airport, Minutoli was questioned and selected for examination by a United States Customs Inspector. When asked to open the suitcase Daniel had provided to her, she claimed that she had forgotten the combination to the lock. After obtaining verbal permission, the Inspector pried the suitcase open. In plain view lay numerous plastic bags containing white tablets. These tablets, numbering 69,805, were MDMA or “Ecstasy,” with an estimated street value of between $1,396,100 and $2,094,150. Found in Mi-nutoli’s other bags were a business diary and a spiral-bound notebook. The business diary contained a list of controlled substances with monetary amounts next to them, and the spiral-bound notebook contained several pages of individuals’ names with monetary amounts next to them. The notebook list appeared to be a record of drug debts.

III. DISCUSSION

It is well-established in this Court that we lack jurisdiction to review the merits of a district court’s discretionary decision to refuse a downward departure under the Sentencing Guidelines once we determine that the district court properly understood its authority to grant a departure:

If we determine the district court was aware of its authority to depart from the Guidelines, and chose not to, we are without power to inquire further into the merits of its refusal to grant [the defendant’s] request. See United States v. Denardi 892 F.2d 269, 272 (3d Cir. 1989). Stated differently, we have jurisdiction to decide whether a sentencing court erred legally when not making a requested discretionary downward departure, but we cannot hear a challenge to the merits of a sentencing court’s discretionary decision not to depart downward from the Guidelines. Id.

United States v. Georgiadis, 933 F.2d 1219, 1222 (3d Cir.1991); see also, e.g., United States v. Gori, 324 F.3d 234, 239 (3d Cir.2003); United States v. Powell, 269 F.3d 175, 178-80 (3d Cir.2001); United States v. Stevens, 223 F.3d 239, 247-48 (3d Cir.2000); United States v. Evans, 49 F.3d 109, 111 (3d Cir.1995); United States v. Mummert, 34 F.3d 201, 205 (3d Cir.1994); United States v. Gaskill, 991 F.2d 82, 84 (3d Cir.1993); United States v. Love, 985 F.2d 732, 734, n. 3 (3d Cir.1993); United States v. Higgins, 967 F.2d 841, 844 (3d Cir.1992).⁴ The Courts of Appeals, virtually unanimously, accept this general rule whether that rule be framed in jurisdictional terms, as our cases frame it, or in terms of unfettered discretion where there has not been an incorrect application of the Guidelines within the meaning of 18 U.S.C. § 3742.

The District Court understood its authority to depart, and there was nothing complicated or ambiguous about the Court’s statement: “I recognize my ability to depart.” We could say, and it would not be the least bit facile to do so, that the District Court did precisely what we have encouraged district courts to do, ie. indicate an awareness of the ability to depart, and that, therefore, under our well-established precedent, we lack jurisdiction to review the discretionary denial of the departure.⁵ Game, set, and match.

But, says the dissent, the District Court did not mean what it said. Rather, the argument goes, the Court was being disingenuous because it “was actually concluding” (emphasis added) “that it lacked the authority to [depart] based on the facts of this case.” Accordingly, the dissent continues, “the sentence imposed ‘resulted from’ an incorrect application of the Guidelines, and we can review it pursuant to 18 U.S.C. § 3742(a)(2).” Dissent at 1. Indeed, concludes the dissent, “we can, and should” assume jurisdiction over all appeals in which it is alleged that the District Court made a clearly erroneous factual determination in the course of denying a discretionary downward departure, for we must assure that the District Court accurately understood and correctly determined the facts of the case. Completing the circle, an erroneous factual finding is an incorrect application of the guidelines that can be reviewed. It bears repetition that the alleged error here was not whether the District Court mistakenly believed it lacked the authority to depart but whether, at the sentencing hearing, there was testimony of threats of physical injury, a paradigm factual inquiry.

While we have not explicitly stated that we lack jurisdiction to review the allegation of a factual error in the course of a discretionary refusal to depart, that conclusion is surely implicit in our cases. Moreover, we reject out of hand the dissent’s statement that “our decision in [United States v.] McQuilkin [, 97 F.3d 723 (3d Cir.1996) ] has already placed us on that side of the issue.” Dissent at 253. Indeed, says the dissent, McQuilkin is “the case that most clearly stands for the proposition that we can review for clear error in a ease like this one.” Id. at 249.

But McQuilkin was not a case “like this one.” In McQuilkin, the District Court refused to grant a discretionary downward departure for extraordinary physical impairment, finding that the defendant’s “condition was ‘not that type of an impairment so severe and complete that the downward departure [was] ... warranted.’ ” Id. at 730. Then Judge, now Chief Judge, Scirica, writing for the majority, explained that this statement could mean one of two things: either “that McQuilkin’s impairment was not extraordinary enough to allow the court to depart under the authority of § 5H1.4; or that the nature of the impairment was sufficiently extraordinary to allow the court to depart, but that the court elected not to depart on this occasion.” Id. Judge Scirica interpreted the statement to mean that the District Court thought that McQuilken’s condition — a left arm injury, and a congenital defect in his left eye — did not qualify him for the requested departure. There was no question that McQuilkin actually had that condition; the only question was whether that condition was of the type that empowered the District Court to grant the departure. Thus, the District Court’s legal conclusion about its authority was at issue, not whether particular facts existed or whether its factual finding that McQuilkin was not as impaired as he claimed was correct.

Parenthetically, the dissent attributes great significance to the McQuilkin Court’s use of the phrase “clear error.” Because we used that phrase, the dissent argues, we “obviously were not reviewing a purely legal conclusion.” Dissent at 250. It is fair to say that, given the legal conclusion we were reviewing, to have invoked clear error as to the standard of review was, at best, confusing. But if “clear error” was inadvisedly used in McQuilkin, that error has not been repeated in any one of numerous precedential opinions in this area that have followed.

McQuilkin is but one of a number of our cases cited by the dissent to support a finding of jurisdiction to review denials of requests for downward departures. Without exception, however, in each ease in which jurisdiction was found, it was because of a legal rather than a factual conclusion. See, e.g., United States v. Dominguez, 296 F.3d 192 (3d Cir.2002) (finding jurisdiction to review a refusal to depart downward based on district court’s erroneous legal conclusion that it lacked jurisdiction to consider the requested departure); United States v. Castano-Vasquez, 266 F.3d 228 (3d Cir.2001) (district court adopted the proper legal standard/analytical construct for interpreting and applying newly enacted USSG § 5K2.20 and, citing McQuilkin, made clear that “[w]e lack jurisdiction to review a refusal to depart downward when the district court, knowing it may do so, nonetheless determines that departure is not warranted”); United States v. Bierley, 922 F.2d 1061 (3d Cir.1990) (finding jurisdiction because district court’s decision not to depart was predicated on legally erroneous impression that it did not have authority to depart). As the First Circuit observed, “in the context of departures, the touchstone of appealability is a mistake of law.” United States v. Dewire, 271 F.3d 333, 337 (1st Cir.2001).⁶

At bottom, then, the dissent is left with United States v. Sammoury, 74 F.3d 1341 (D.C.Cir.1996), the case, apart from McQuilkin, on which it principally relies. To be sure, the Sammoury Court concluded that if a discretionary refusal to depart is based on a clearly erroneous factual mistake, that decision is reviewable on appeal. It is just as surely wrong, and has not once been cited for this novel conclusion, much less followed, by any Court of Appeals. Indeed, the one Court of Appeals that has even discussed this conclusion has explicitly and persuasively rejected it. Dewire, 271 F.3d 333. We cannot say it better than that Court said it:

The reasoning in Sammoury was based on a conflation of 18 U.S.C. §§ 3742(a)(2) and (e)(2), which authorize review of a sentence based on an incorrect application of the Sentencing Guidelines, with section 3742(e)’s mandate that appellate courts are to “accept the findings of fact of the district court [on sentencing matters] unless they are clearly erroneous” ... We believe that Sammoury misapprehends the difference between a factually correct application of the sentencing guidelines, to which a defendant is entitled, and the award of a discretionary departure, to which he is not. An otherwise proper sentence is not a misapplication of the Sentencing Guidelines simply because the district court, as a matter of discretion, refuses to impose a lesser sentence than the law authorizes, even if its factual reasons for doing so are mistaken.

Dewire, 271 F.3d at 338-39 (quotation, citations and note omitted).

The Fourth Circuit has also rejected an exception for alleged factual mistakes to the rule that “the only circumstance in which review is available is when the district court mistakenly believed that it lacked the authority to depart.” United States v. Underwood, 970 F.2d 1336, 1338 (4th Cir.1992); see also United States v. Matthews, 209 F.3d 338, 352-53 (4th Cir. 2000). The Seventh Circuit concurs: “[A] determination by the sentencing judge that the facts of a case do not support a downward departure is not reviewable on appeal.” United States v. Steels, 38 F.3d 350, 352 (7th Cir.1994).

The dissent concedes this much: “we cannot review a purely discretionary refusal to depart ... where the court correctly determines the relevant facts and applies the appropriate Guideline principles” and where it is “clear that the sentence did not result from the allegedly mistaken factual finding.” Dissent at 245, 250. But would we not have to review to determine if it was “clear” that the facts were correctly determined or, as the dissent phrases it, to see if the District Court had an “accurate perception of the facts”? Indeed, would we not, then, be addressing the merits of the departure request itself even before we are able to determine that we have jurisdiction to address the merits? See Mummert, 34 F.3d at 205.

It does not require any great leap of faith to believe that were the dissent to carry the day, there will nary be an appeal from the denial of a downward departure that will not contain an allegation of factual error. It also does not require any great leap of faith to predict that district courts may well eschew explanations for their refusals to depart and simply state that they are denying departures on discretionary (as opposed to legal) grounds, while recognizing their authority to grant those departures. As the Dewire Court put it:

The precedents to which we adhere in today’s decision rest on sound policy grounds. Because a trial court’s refusal to depart is inherently discretionary and fact-based, a rule contrary to our precedent would invite frivolous appeals, discourage trial judges from explaining a •refusal to depart, and require this court to second-guess, on a cold, and often factually dense record, the subjective influence that a questionable fact may have exerted on a trial judge’s ultimate sentencing decision.

Dewire, 271 F.3d at 339-40 (notes omitted). The Court illustrated the last point:' if, for example, a defendant shows that one of a trial judge’s three reasons for refusing to depart was wrong, the appeals court would have to consider whether either of the other two reasons would have been sufficient and the degree to which that reason influenced the judge’s thinking, vitiating the broad discretion granted to sentencing judges.

Returning to where we began, our precedent and sound policy reasons mandate the conclusion that where a district court allegedly made a mistake of fact when, in the exercise of its discretion, it refused to grant a request for a downward departure, while aware of its authority to grant that request, we lack jurisdiction to review that decision.

IV. CONCLUSION

Because the District Court correctly denied an adjustment for minor role in the offense, we will affirm the judgment and sentence. We lack jurisdiction to review the denial of the request for a downward departure.

1 . The District Court carefully considered this request; discussed the factors we deemed important in United States v. Headley, 923 F.2d 1079 (3d Cir.1991), and United States v. Isaza-Zapata, 148 F.3d 236 (3d Cir.1998); and correctly determined that an adjustment for minor role was not warranted. The correctness of that determination is underscored by our subsequent decision in United States v. Rodriguez, 342 F.3d 296 (3d Cir.2003). We see no reason to discuss the minor role contention further.

2 . Minutoli testified that she only received $10,000, and claims that that was later stolen from her by Segetti.

3 . This testimony was elicited at sentencing from Minutoli and from Dr. Law son Bernstein, a forensic neuropsychiatrist. Dr. Bernstein admitted on cross-examination that his diagnosis and conclusion were almost exclusively based upon representations made to him by Minutoli, and cited to her disclosures that David provided her with drugs, coerced her into degrading sexual practices, verbally abused her, made her financially dependent upon him, and implied "physical harm in a variety of actions.”

4 . Parenthetically, if, as the dissent states, only a fraction of the numerous appeals we decide involving jurisdiction to review denials of downward departures have resulted in prece-dential opinions, it is because our law in this area is settled, not because it is underdeveloped. And, we note, the cases the dissent briefly synopsizes in note 4 almost without exception recite our well-settled law in this area.

5 . While district courts need not utter the magic words, "I recognize I have authority to grant the downward departure,” we have strongly encouraged them to do so, in order both to simplify our inquiry and to eliminate any ambiguity. See Georgiadis, 933 F.2d at 1223. We reiterate this encouragement whenever guideline sentencing is discussed at such events as our Court's bench/bar conferences.

6 . An earlier First Circuit case explained when an appeal does and does not lie:

If the judge sets differential factfinding and evaluative judgments to one side, and says, in effect, "this circumstance of which you speak, even if it exists, does not constitute a legally sufficient basis for departure,” then the correctness of that quintessential^ legal determination may be tested on appeal. But if the judge says, in effect, either that "this circumstance of which you speak has not been shown to exist in this case,” or, alternatively, that "while this circumstance of which you speak might exist and might constitute a legally cognizable basis for a departure in a theoretical sense, it does not render this particular case sufficiently unusual to warrant departing,” then, in either such event, no appeal lies.

United States v. Pierro, 32 F.3d 611, 619 (1st Cir.1994).