United States v. Minutoli

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

Opinion

Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit

7-8-2004

USA v. Minutoli Precedential or Non-Precedential: Precedential

Docket No. 02-3108

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UNITED STATES COURT OF Mary Beth Buchanan APPEALS United States Attorney FOR THE THIRD CIRCUIT Office of the United States Attorney Bonnie R. Schlueter, Esq. Michael L. Ivory, Esq. No. 02-3108 Kelly R. Labby, Esq. (Argued) 633 U.S. Post Office & Courthouse Pittsburgh, PA 15219 UNITED STATES OF AMERICA Attorneys for Appellee v.

LISA ANN MINUTOLI, Appellant OPINION OF THE COURT

APPEAL FROM THE UNITED STATES DISTRICT COURT BARRY, Circuit Judge FOR THE WESTERN DISTRICT OF PENNSYLVANIA We are called upon to decide D.C. Crim. No. 01-cr-00176 whether we have jurisdiction to review a District Judge: The Honorable Donetta district court’s discretionary refusal to W. Ambrose downward depart from the applicable Sentencing Guideline range when that refusal is based in whole or in part on an Argued: February 25, 2004 alleged mistake of fact. The well- established precedent of this Court mandates the answer to this question, and Before: RENDELL, BARRY, and the answer is a ringing “no.” FISHER, Circuit Judges I. INTRODUCTION

(Opinion Filed: July 8, 2004 ) On August 29, 2001, a federal grand jury returned a two-count indictment against Lisa Ann Minutoli (“Minutoli”). Stanton D. Levenson, Esq. (Argued) Count One charged Minutoli w ith 1715 Gulf Tower possession with intent to distribute a Pittsburgh, PA 15219 mixture and substance containing a

1 detectable amount of 3,4- party, the coercion and m e t h y le n e d i o x y m e t h a m p h e t a m i n e duress does not rise to the (MDMA), in the form of “Ecstasy” tablets, l e v e l t h a t w a r r a n ts in violation of 21 U.S.C. §§ 841(a)(1) and de parture. (emphasis 841(b)(1)(C); and Count Two charged added). unlawful importation into the United States of said tablets, in violation of 21 In denying her request for an adjustment U.S.C. §§ 952(a) and 960(b)(3). M inutoli for minor role, the District Court stated: pled guilty to Count Two, and Count One was subsequently dismissed. My understanding of this case and what I believe has It was not disputed that under the been demonstrated by the United States Sentencing Guidelines e v i d e n c e is that t h e (USSG), Minutoli’s base offense level was defendant was not just a 29 and her criminal history category was I, mere, to use an adjective, resulting in a range of 87-108 months’ courier. Her importance to imprisonment. Prior to sentencing, the success of the venture however, Minutoli moved for a downward was vital. departure, based on reduced mental *** capacity (USSG § 5K2.13) and coercion But, as I indicated, I do not and duress (USSG § 5K2.12), and for a believe, based on the two-level reduction in her offense level as evidence, that you were a a minor participant. (USSG § 3B1.2(b)). minor participant because of The District Court denied these requests your importance, your and, on July 25, 2002, sentenced Minutoli knowledge of these – the to 87 months’ imprisonment, to be nature and scope of the followed by three years’ supervised enterprise. release. In denying the downward departure, the District Court stated, in part: Minutoli raises two issues on appeal. First, she contends that the District [W]hile I recognize my Court made a factual error in concluding ability to depart under that the testimony at the sentencing 5K2.12, without threat of hearing did not support a finding of physical injury resulting physical threats and, thus, she was wrongly from unlawful actions of a denied a downward departure under § third party, which I don’t 5K2.12. Second, she contends that as a believe was in the testimony, “mere” drug courier, she was entitled to a or substantial damage to downward adjustment for her minor role in property resulting from unlawful action of a third

2 the offense.1 We will affirm the judgment knew as David, but whose name was, in and sentence. fact, Elly, and with whom she carried on a romantic relationship for four months. II. BACKGROUND Soon after they met, David Sometime in the spring of 2001, informed Minutoli that the organization Minutoli, a long-time drug user, was with which they were affiliated was an recruited as a drug courier by a woman international drug ring and that he planned named Christine Segetti, whom she had to break away and begin his own met through her personal drug dealer. smuggling operation. Thus, in June 2001, Segetti offered Minutoli $20,000, in return David and Minutoli traveled to Tijuana, for which she traveled from Los Angeles Mexico, where they met with persons from to Paris and then to Amsterdam, where she several countries and planned the was given Ecstacy tablets by a man named operation, although M inutoli disclaimed Joseph, and returned with the drugs to any role in the planning. After returning New York City. 2 While in New York City, from Tijuana, David told Minutoli that she she gave the drugs, minus a small portion was to go to Germany and transport drugs for herself, to one Thomas-Elan. After back to the United States. Minutoli did not spending about a week-and-a-half with want to make the trip and argued with Thomas-Elan and Segetti, she returned to David about it, angering him to the point Los Angeles, where she met a man she that he threw a car stereo at her. When David threatened to kill her, she agreed to 1 go. The night before she left, and to The District Court carefully assure that she would do what she had considered this request; discussed the agreed to do, David placed his gun on top factors we deemed important in United of a bedroom dresser before getting into States v. Headley, 923 F.2d 1079 (3d Cir. bed with her. David was often verbally 1991), and United States v. Isaza-Zapata, abusive to her, physically threatened her, 148 F.3d 236 (3d Cir. 1998); and and told her that he had killed people correctly determined that an adjustment before. Minutoli felt trapped by him both for minor role was not warranted. The physically and financially, in part because correctness of that determination is he continuously provided drugs to her, underscored by our subsequent decision escalating her addiction. In sum, she in United States v. Rodriguez, 342 F.3d claimed, he “broke” her.3 296 (3d Cir. 2003). We see no reason to discuss the minor role contention further. 3 This testimony was elicited at 2 Minutoli testified that she only sentencing from M inutoli and from Dr. received $10,000, and claims that that Lawson Bernstein, a forensic was later stolen from her by Segetti. neuropsychiatrist. Dr. Bernstein

3 On July 24, 2001, David drove Minutoli’s other bags were a business Minutoli to the Los Angeles airport and diary and a spiral-bound notebook. The warned her that people would be watching business diary contained a list of her while she was in Germany. Upon her controlled substances with monetary arrival in Germany, she checked into a amounts next to them, and the spiral- hotel and informed her contact in bound notebook contained several pages of Amsterdam, a man named Daniel, of her individuals’ names with monetary amounts location. Daniel provided her with money next to them. The notebook list appeared for her hotel and periodically stopped by to to be a record of drug debts. check on her. Additionally, David phoned her nearly every day. The day before her III. DISCUSSION return to the United States, Daniel provided her with a suitcase for the trip. It is well-established in this Court that we lack jurisdiction to review the Upon her arrival at the Pittsburgh merits of a district court’s discretionary International Airport, Minutoli was decision to refuse a downward departure questioned and selected for examination under the Sentencing Guidelines once we by a United States Customs Inspector. determine that the district court properly When asked to open the suitcase Daniel understood its authority to grant a had provided to her, she claimed that she departure: had forgotten the combination to the lock. After obtaining verbal permission, the If we determine the district Inspector pried the suitcase open. In plain court was aware of its view lay numerous plastic bags containing authority to depart from the white tablets. These tablets, numbering Guidelines, and chose not 69,805, were MDM A or “Ecstasy,” with to, we are without power to an estimated street value of between inquire further into the $1,396,100 and $2,094,150. Found in merits of its refusal to grant [the defendant’s] request. See U nited States v. Denardi, 892 F.2d 269, 272 admitted on cross-examination that his (3d Cir. 1989). Stated diagnosis and conclusion were almost di f f e r e n tly, w e h a v e exclusively based upon representations jur isdic tion to dec ide made to him by Minutoli, and cited to her whether a sentencing court disclosures that David provided her with erred legally when not drugs, coerced her into degrading sexual making a reques ted practices, verbally abused her, made her discretionary downward financially dependent upon him, and departure, but we cannot implied “physical harm in a variety of hear a challenge to the actions.”

4 merits of a of the Guidelines within the meaning of 18 sentencing court’s U.S.C. § 3742. discretionary decision not to depart The District Court understood its downward from the authority to depart, and there was nothing Guidelines. Id. complicated or ambiguous about the Court’s statement: “I recognize my ability United States v. Georgiadis, 933 F.2d to depart.” We could say, and it would not 1219, 1222 (3d Cir. 1991); see also, e.g., be the least bit facile to do so, that the United States v. Gori, 324 F.3d 234, 239 District Court did precisely what we have (3d Cir. 2003); United States v. Powell, encouraged district courts to do, i.e. 269 F.3d 175, 178-80 (3d Cir. 2001); indicate an awareness of the ability to United States v. Stevens, 223 F.3d 239, depart, and that, therefore, under our well- 247-48 (3d Cir. 2000); United States v. established precedent, we lack jurisdiction Evans, 49 F.3d 109, 111 (3d Cir. 1995); to review the discretionary denial of the United States v. Mummert, 34 F.3d 201, departure.5 Game, set, and match. 205 (3d Cir. 1994); United States v. Gaskill, 991 F.2d 82, 84 (3d Cir. 1993); But, says the dissent, the District United States v. Love, 985 F.2d 732, 734, Court did not mean what it said. Rather, n.3 (3d Cir. 1993); United States v. the argument goes, the Court was being Higgins, 967 F.2d 841, 844 (3d Cir. disingenuous because it “was actually 1992). 4 The Courts of Appeals, virtually concluding” (emphasis added) “that it unanimously, accept this general rule lacked the authority to [depart] based on whether that rule be framed in the facts of this case.” Accordingly, the jurisdictional terms, as our cases frame it, dissent continues, “the sentence imposed or in terms of unfettered discretion where ‘resulted from’ an incorrect application of there has not been an incorrect application the Guidelines, and we can review it

4 5 Parenthetically, if, as the dissent While district courts need not utter states, only a fraction of the numerous the magic words, “I recognize I have appeals we decide involving jurisdiction authority to grant the downward to review denials of downward departure,” we have strongly encouraged departures have resulted in precedential them to do so, in order both to simplify opinions, it is because our law in this our inquiry and to eliminate any area is settled, not because it is ambiguity. See Georgiadis, 933 F.2d at underdeveloped. And, we note, the cases 1223. We reiterate this encouragement the dissent briefly synopsizes in note 4 whenever guideline sentencing is almost without exception recite our well- discussed at such events as our Court’s settled law in this area. bench/bar conferences.

5 pursuant to 18 U.S.C. § 3742(a)(2).” impairment, finding that the defendant’s Dissent at 1. Indeed, concludes the “condition was ‘not that type of an dissent, “we can, and should” assume impairment so severe and complete that jurisdiction over all appeals in which it is the downward departure [was] ... alleged that the District Court made a warranted.’” Id. at 730. Then Judge, now clearly erroneous factual determination in Chief Judge, Scirica, writing for the the course of denying a discretionary majority, explained that this statement downward departure, for we must assure could mean one of two things: either “that that the District Court accurately Mc Quilkin’s impairment was not understood and correctly determined the extraordinary enough to allow the court to facts of the case. Completing the circle, an depart under the authority of § 5H1.4; or erroneous factual finding is an incorrect that the nature of the impairment was application of the guidelines that can be sufficiently extraordinary to allow the reviewed. It bears repetition that the court to depart, but that the court elected alleged error here was not whether the not to depart on this occasion.” Id. Judge District Court mistakenly believed it Scirica interpreted the statement to mean lacked the authority to depart but whether, that the District Court thought that at the sentencing hearing, there was McQuilken’s condition – a left arm injury, testimony of threats of physical injury, a and a congenital defect in his left eye – did paradigm factual inquiry. not qualify him for the requested departure. There was no question that While we have not explicitly stated McQuilkin actually had that condition; the that we lack jurisdiction to review the only question was whether that condition allegation of a factual error in the course was of the type that empowered the of a discretionary refusal to depart, that District Court to grant the departure. conclusion is surely implicit in our cases. Thus, the District Court’s legal conclusion Moreover, we reject out of hand the about its authority was at issue, not dissent’s statement that “our decision in whether particular facts existed or whether [United States v.] McQuilkin[, 97 F.3d its factual finding that McQuilkin was not 723 (3d Cir. 1996)] has already placed us as impaired as he claimed was correct. on that side of the issue.” Dissent at 13. Indeed, says the dissent, McQuilkin is “the Parenthe tic all y, the dis sent case that most clearly stands for the attributes great significance to the proposition that we can review for clear McQuilkin Court’s use of the phrase “clear error in a case like this one.” Id. at 13. error.” Because we used that phrase, the dissent argues, we “obviously were not But McQuilkin was not a case “like reviewing a purely legal conclusion.” this one.” In McQuilkin, the District Court Dissent at 9. It is fair to say that, given the refused to grant a discretionary downward legal conclusion we were reviewing, to departure for extraordinary physical have invoked clear error as to the standard

6 of review was, at best, confusing. But if 2001). 6 “clear error” was inadvisedly used in McQuilkin, that error has not been At bottom, then, the dissent is left repeated in any one of numerous precedential opinions in this area that have followed. 6 An earlier First Circuit case explained when an appeal does and does not lie: McQuilkin is but one of a number of our cases cited by the dissent to support If the judge sets differential a finding of jurisdiction to review denials factfinding and evaluative of requests for downward departures. judgments to one side, and Without exception, however, in each case says, in effect, “this in which jurisdiction was found, it was circumstance of which you because of a legal rather than a factual speak, even if it exists, does conclusion. See, e.g., United States v. not constitute a legally Dominguez, 296 F.3d 192 (3d Cir. 2002) sufficient basis for (finding jurisdiction to review a refusal to departure,” then the depart downward based on district court’s correctness of that erroneous legal conclusion that it lacked quintessentially legal jurisdiction to consider the requested determination may be departure); United States v. Castano- tested on appeal. But if the Vasquez, 266 F.3d 228 (3d Cir. 2001) judge says, in effect, either (district court adopted the proper legal that “this circumstance of s t a n d a r d / a n a l yt i c al c o n s t r u ct f or which you speak has not interpreting and applying newly enacted been shown to exist in this USSG § 5K2.20 and, citing McQuilkin, case,” or, alternatively, that made clear that “[w]e lack jurisdiction to “while this circumstance of review a refusal to depart downward when which you speak might the district court, knowing it may do so, exist and might constitute a nonetheless determines that departure is legally cognizable basis for not warranted”); United States v. Bierley, a departure in a theoretical 922 F.2d 1061 (3d Cir. 1990) (finding sense, it does not render jurisdiction because district court’s this particular case decision not to depart was predicated on sufficiently unusual to legally erroneous impression that it did not warrant departing,” then, in have authority to depart). As the First either such event, no Circuit observed, “in the context of appeal lies. departures, the touchstone of appealability is a mistake of law.” United States v. United States v. Pierro, 32 F.3d 611, 619 Dewire, 271 F.3d 333, 337 (1st Cir. (1st Cir. 1994).

7 with United States v. Sammoury, 74 F.3d not a misapplication of the 1341 (D.C. Cir. 1996), the case, apart from S e n t e n c in g G u i d e l in e s McQuilkin, on which it principally relies. simply because the district To be sure, the Sammoury Court court, as a matter of concluded that if a discretionary refusal to discretion, refuses to impose depart is based on a clearly erroneous a lesser sentence than the factual mistake, that decision is reviewable law authorizes, even if its on appeal. It is just as surely wrong, and factual reasons for doing so has not once been cited for this novel are mistaken. conclusion, much less followed, by any Court of Appeals. Indeed, the one Court Dewire, 271 F.3d at 338-39 (quotation, of Appeals that has even discussed this citations and note omitted). conclusion has explicitly and persuasively rejected it. Dewire, 271 F.3d 333. We The Fourth Circuit has also rejected cannot say it better than that Court said it: an exception for alleged factual mistakes to the rule that “the only circumstance in The reasoning in Sammoury which review is available is when the was based on a conflation of district court mistakenly believed that it 18 U.S.C. §§ 3742(a)(2) and lacked the authority to depart.” United (e)(2), which authorize States v. Underwood, 970 F.2d 1336, 1338 review of a sentence based (4th Cir. 1992); see also United States v. on an incorrect application Matthews, 209 F.3d 338, 352-53 (4th Cir. o f t h e Sentencin g 2000). The Seventh Circuit concurs: “[A] Guidelines, with section determination by the sentencing judge that 3742(e)’s mandate that the facts of a case do not support a appellate courts are to downward departure is not reviewable on “accept the findings of fact appeal.” United States v. Steels, 38 F.3d of the district court [on 350, 352 (7th Cir. 1994). sentencing matters] unless they are clearly erroneous” . The dissent concedes this much: . . We believe that “we cannot review a purely discretionary Sammoury misapprehends refusal to depart . . . where the court the difference between a correctly determines the relevant facts and factually correct application applies the appropriate Guideline of the sentencing guidelines, principles” and where it is “clear that the to which a defendant is sentence did not result from the allegedly entitled, and the award of a mistaken factual finding.” Dissent at 3-4, discretionary departure, to 11. But would we not have to review to which he is not. An determine if it was “clear” that the facts otherwise proper sentence is were correctly determined or, as the

8 dissent phrases it, to see if the District fact may have exerted on a Court had an “accurate perception of the tri a l j u d g e ’ s u ltima te facts”? Indeed, would we not, then, be sentencing decision. addressing the merits of the departure request itself even before we are able to Dewire, 271 F.3d at 339-40 (notes determine that we have jurisdiction to omitted). The Court illustrated the last address the merits? See Mummert, 34 point: if, for example, a defendant shows F.3d at 205. that one of a trial judge’s three reasons for refusing to depart was wrong, the appeals It does not require any great leap of court would have to consider whether faith to believe that were the dissent to either of the other two reasons would have carry the day, there will nary be an appeal been sufficient and the degree to which from the denial of a downward departure that reason influenced the judge’s that will not contain an allegation of thinking, vitiating the broad discretion factual error. It also does not require any granted to sentencing judges. great leap of faith to predict that district courts may well eschew explanations for Returning to where we began, our their refusals to depart and simply state precedent and sound policy reasons that they are denying departures on mandate the conclusion that where a discretionary (as opposed to legal) district court allegedly made a mistake of grounds, while recognizing their authority fact when, in the exercise of its discretion, to grant those departures. As the Dewire it refused to grant a request for a Court put it: downward departure, while aware of its authority to grant that request, we lack The precedents to which we jurisdiction to review that decision. adhere in today’s decision rest on sound polic y IV. CONCLUSION grounds. Because a trial court’s refusal to depart is Because the District Court correctly inherently discretionary and denied an adjustment for minor role in the fact-based, a rule contrary to offense, we will affirm the judgment and our precedent would invite sentence. We lack jurisdiction to review frivolous appeals, the denial of the request for a downward discourage trial judges from departure. explaining a refusal to depart, and require this court to second-guess, on a cold, and often factually dense r e c ord, the su bjecti ve influence that a questionable

9 [US v. Minutoli, 02-3108 (2/25/04)] there was no record evidence of threats of physical injury or physical damage to RENDELL, Circuit Judge, Dissenting. property. Therefore, rather than exercising its discretion, I submit that the Court was The line between an unreviewable actually concluding that it lacked the discretionary refusal to depart and a legal authority to grant a § 5K2.12 departure or fact-based determination that the court based on the facts of this case. lacks the authority to depart in a given case is often hard to discern. This is especially Reading the Court’s reasoning in so given the language that district courts toto, it becomes apparent that the District are routinely using in explaining their Court’s statement regarding its “ability” to sentencing decisions. The District Court depart was not a legal conclusion; rather, in the instant case made the following the statement was a reference to the fact statement regarding the departure under § that the departure provision for coercion or 5K2.12 of the Sentencing Guidelines: duress in § 5K2.12 was potentially applicable here. However, the Court went And with the coercion and on to conclude that the provision was not duress, additionally, while I applicable, based on the lack of testimony recognize my ability to regarding a factor that constitutes a depart under 5 K 2 . 1 2 , prerequisite to its application. But, as without threat of physical Minutoli correctly points out, such i n j u ry resulting fro m testimony was presented. Accordingly, the unlawful actions of a third sentence imposed “resulted from” an party, which I don’t believe incorrect application of the Guidelines, was in the testimony, or and we can review it pursuant to 18 U.S.C. substantial da m age to § 3742(a)(2). property resulting from unlawful action of a third Thus, I disagree with the majority’s party, the coercion and conclusion that we cannot review the duress does not rise to the denial of a departure in a case such as this, l e v e l th at w ar r a n ts where the District Court acknowledged its departure. general power under the Guidelines but then concluded that the case before it was In finding that we lack jurisdiction, the not one in which a departure was majo rity focuse s on th e Co urt’s authorized. In fact, I find a statutory acknowledgment of its “ability to depart,” foundation, as well as a basis in our own concluding that the denial in this case was jurisprudence, for reviewing the factual discretionary. I, on the other hand, believe findings supporting such a conclusion for that the District Court’s determination was clear error. Additionally, I derive based on its erroneous factual finding that guidance and support for this view in the

10 well-reasoned decisions of some of our third party” caused the defendant to sister courts of appeals that have commit the offense, but where the confronted this issue. Based on my circumstances did not amount to a reading of these cases, I conclude that we complete duress defense. The record can, and should, assume jurisdiction over contained evidence that Minutoli’s appeals like this one, involving allegations boyfriend threw a stereo at her, threatened that the district court based its denial of a to kill her if she would not transport the departure on clearly erroneous factual drugs, informed her that he would have her findings. followed throughout her trip to Europe, and intimidated her with a gun in their I. bedroom the night before she left. Yet the I will begin by reviewing the District Court ignored this evidence, statutory basis for our jurisdiction over essentially saying that it was not there. criminal appeals challenging sentencing decisions, positing when and how we Therefore, our jurisdiction to should exercise our jurisdiction in cases review this case is based on § 3742(a)(2). involving denials of downward departures. This is because when a district court Then, in Parts II and III, I will discuss the makes an erroneous factual finding that is case law that supports this reasoning. relevant to its determination as to whether the departure provision applies, the Under 18 U.S.C. § 3742(a)(1) and sentence has necessarily been imposed as (2), we are empowered to review sentences a result of an incorrect application of the that are imposed “in violation of law” or Guidelines. Here, the District Court “as a result of an incorrect application of incorrectly ignored evidence relevant to the sentencing guidelines.” Minutoli does the application of the Guideline provision not contend that her sentence violates any concerning coercion and duress. How can law under (a)(1). Rather, she argues that the Guideline have been properly applied the District Court incorrectly applied the in Minutoli’s case where the District Court Sentencing Guidelines in that it clearly made an erroneous factual finding that erred when it considered whether certain resulted in the Guideline’s not being facts were present in order to qualify her applied at all, whereas a correct finding for a departure under the pertinent could have rendered the coercion or duress Guideline provision, specifically, whether departure provision applicable to her the offense was caused by coercion or situation? Under the statutory review duress as contemplated by § 5K2.12 of the authority contained in § 3742(a)(2), we Guidelines. That provision notes that this have jurisdiction to monitor the District departure is reserved for cases in which “a Court’s application of the Guidelines, and threat of physical injury, substantial we should do so here. damage to property or similar injury resulting from the unlawful action of a The majority seeks to draw a bright

11 line between legal and factual errors, but This does not mean that all such a distinction has no significance departure challenges are reviewable. For when considering the statutorily-defined instance, § 3742(a) does not give us bounds of our jurisdiction. The statutory jurisdiction to review in a case where a power to review simply is not limited to defendant has succeeded in obtaining a cases involving challenges to a district downward departure, but argues that the court’s legal conclusions. Rather, we are departure should have been larger than it to review if there appears either a violation was. There really is no correct or incorrect of law or an incorrect application of the way to apply the Guidelines once a Sentencing Guidelines. The statute does departure provision is deemed satisfied in not limit our jurisdiction in situations of a particular case, and the district court “incorrect application” in the way the clearly does have discretion to depart from majority suggests; it does not remove from the relevant range to the degree it sees fit. the scope of our review power situations in And, we cannot review a purely which the incorrect application of the discretionary refusal to depart8 where the Guidelines has occurred because of an erroneous factual finding. The majority would read such a caveat into the statute, considering the relevant provision. In but it just is not there.7 order to correctly apply the Guidelines to a given case, a district court must first identify the proper provisions of the Guidelines, and then it must consider the 7 At least some of the discord between applicability or “fit” of those provisions the majority’s position and my own in light of the correctly-determined facts seems to arise from our differing views of the case. In other words, the court regarding what it means to “apply” the must find the facts correctly, then Guidelines. The majority is correct that, correctly apply the appropriate Guideline in some sense, the District Court here to those facts. “applied” the Guidelines correctly, 8 insofar as it correctly identified the By “purely discretionary refusal to relevant departure provisions, and depart” I mean a case in which the properly understood the factors that a district court finds that the facts do defendant must prove before a district satisfy the relevant Guideline provision, court is free to consider granting a such that the court has the authority to departure under that provision. depart in the particular case before it, but However, beyond identifying the correct where the court exercises its discretion in legal standards, I believe that the proper deciding not to grant the departure for “application” of the Guidelines must also some other reason. An example of this, include an accurate understanding of the based on a variation of the facts of this facts that are pertinent to the analysis in case, would be a case in which the which the court must engage when defendant presents significant evidence

12 district court’s view as to its legal power to the authority to depart in cases where the depart under the Guidelines was correct – facts “fit” within one of the relevant in other words, where the court correctly provisions, such as the provisions of determines the relevant facts and applies Chapter 5 implicated in this case. Here, the appropriate Guideline principles, but under § 5K2.12, the trial court only has the declines to depart. See United States v. authority to depart downward if the Ruiz, 536 U.S. 622, 627 (2002) (listing situation involves threats of physical injury cases from every court of appeals reaching or substantial property damage, and if this conclusion). Similarly, where a those threats caused the defendant to district court does make a legal or factual commit the relevant offense. So where the error, but nonetheless makes clear that the situation does not involve any threats of sentence did not result from that error that sort, a district court does not have the because, even if the departure provision power to invoke § 5K2.12 and depart “fit,” the court would not be inclined to downward. grant it, we could not exercise our power of review. But we can, and should, review Here, the Court made a clearly refusals to depart where the district court erroneous factual finding when it stated makes an error in applying the Guidelines, that there was no testimony of physical whether due to an erroneous factual threats or violence in the record. As noted determination or a misapplication of law to above, both Minutoli and Dr. Bernstein the facts, whereby the district court testified regarding various instances of mistakenly concludes that it is without the threats and violence that occurred in the specific authority to depart in the case days leading up to Minutoli’s trip. While before it, and the sentence has been there might be legitimate reasons for imposed as a result of that error. Such denying a departure in this case, even in cases fall squarely within § 3742(a)(2). the face of these threats and acts of violence, it appears as though the District The Guidelines grant district courts Court ignored or forgot about this testimony altogether and based its ruling on the lack of such evidence. Accordingly, we have jurisdiction to of threats or physical violence, leading review under § 3742(a)(2). the district court to conclude that the defendant qualifies for a departure under The majority’s fear that a finding of § 5K2.12. In such a case, the court jurisdiction here would force us to would recognize its specific authority to constantly review the merits of district depart for that particular defendant, but court rulings in order to determine our could discretionarily refuse to do so jurisdiction is unfounded. We are already simply because the defendant seems like in the business of doing so, to a certain a “bad” person, or for any number of extent, every time we examine a district other reasons.

13 court’s sentencing ruling to decide whether necessarily have refused to depart, had it it was an exercise of discretion or a legal properly perceived the facts or properly determination regarding the court’s power understood the parameters of the to depart or to apply a given Guideline Guidelines and how they should be applied provision. Looking out for clearly in a given case. And in other cases, it is e r r o n e o u s factual determinati o ns, clear from the record that the court felt explicitly made by the sentencing court, in c o n s t ra i n e d b y t h e G u i d e li n e s, order to be certain that the sentence did not misapprehending a lack of authority to “result from” an incorrect application of depart, and it appears likely that the court the Guidelines, is no more than a necessary would have departed, had it believed that concomitant of our obligation to ensure it could do so. In these latter two that we have jurisdiction where it is categories of cases, we must conclude that precisely defined. And, we routinely do the sentence was imposed not as a result of this in other types of cases as well. Cf. discretionary considerations, but rather as Drakes v. Zimski, 240 F.3d 246, 247 (3d a result of an incorrect application of the Cir. 2001) (holding that “we have Guidelines to the factual setting before the jurisdiction to determine our jurisdiction” court. If a judge reasons that a factor under a provision of the Immigration and necessary for departure is not present, but Nationality Act that prevents our review of it either is present or is not a factor appeals by aliens who are removable based necessary as a matter of law, how is on aggravated felony convictions, and discretion exercised in making that reviewing the facts presented to determine determination at all? The answer is simple whether the petitioner’s crime was an – no discretion is exercised. Again, the “aggravated felony”). statutory power of review requires that we exercise our jurisdiction to review the I suggest that, in order to determine sentence imposed on Minutoli as a result whether we have jurisdiction to review the of an incorrect application of the denial of a downward departure, we should Guidelines to the facts of her case. ask the following question: if the District Court had not made an erroneous factual II. finding, would the result have been the The majority reads our court’s same? If we can categorically answer precedents as clearly foreclosing review in “yes,” then we are saying that the District cases like this one, and the Government Court did not really care whether the facts strongly advocates that we are bound by or the law “fit,” because the sentence was our precedent to find that we lack imposed as a result of her decision not to jurisdiction here. I emphatically disagree grant the departure in her discretion. In with that view. Although the case law such a case, we are without jurisdiction to related to our appellate jurisdiction over review. But in some cases, like this one, claims involving a district court’s denial of we cannot tell whether the court would a defendant’s motion for a downward

14 departure is becoming increasingly challenge the result in Denardi in order to confusing, I believe that a careful recognize that our decision there can (and examination of the relevant decisions should) be read to support the view that we actually supports a finding that we have have jurisdiction in the instant matter, jurisdiction here. especially in light of our subsequent decisions applying the rule we enunciated The case that marks the starting there. As the majority described it, the point for our jurisprudence in this area is scenario we considered in Denardi was not United States v. Denardi, 892 F.2d 269 (3d one in which the District Court Cir. 1990). In Denardi, a defendant misunderstood, based on a mistake about appealed his sentence, arguing that his either the law or the facts, its legal case involved certain mitigating factors authority to depart; rather, the Court was that were not adequately considered by the empowered to grant a departure for that Sentencing Commission in the Guidelines. defendant but elected not to do so. The Id. at 270. We described the situation same has been true in many of our before us as one where “the district court subsequent decisions applying Denardi. did not misunderstand the law in applying the sentencing guidelines,” and where the Since Denardi, we have been faced court “had discretion to grant the with a multitude of appeals involving [departure] request” but, “nevertheless, questions of our jurisdiction to review refused to grant such relief.” Id. at 271. On those facts, we held that we lack appellate jurisdiction over an appeal that the court’s decision, indicated his belief “attacks the district court’s exercise of that the majority decided a question that discretion in refusing to reduce [a] was not actually presented by that case. sentence [ ] below the sen tencin g See 892 F.2d at 272 (Becker, J., guidelines.” Id. at 272. dissenting) (stating that the record shows Although I admit to having some that the district court “felt legally doubt as to the soundness of certain prohibited from departing,” while the aspects of our reasoning in Denardi, as majority decided “whether a we ll as the accuracy of our discretionary refusal to depart is characterization of the District Court’s appealable”). However, I will assume statements there,9 it is not necessary to here that the majority’s interpretation was correct, and that the holding in Denardi that we lacked jurisdiction is 9 Based on the portions of the District limited to situations in which a district Court’s comments at the sentencing court in fact possesses and recognizes its hearing that are quoted in the Denardi legal authority to depart on the facts majority opinion, I am inclined to agree before it, but exercises its discretion in with Judge Becker, who, dissenting from refusing to do so.

15 denials of requests for downward Only a fraction of these appeals have departures in a variety of circumstances.10 resulted in precedential opinions of our court,11 and, as I will discuss below, only one of those opinions confronts a factual 10 scenario similar to the one presented by For example, see United States v. this case. Gori, 324 F.3d 234, 239 (3d Cir. 2003) (finding jurisdiction to review the denial In addition to our own opinions of a departure request based on the low confronting this general issue, we are quality of the drug involved); United guided by the Supreme Court’s recent States v. Dominguez, 296 F.3d 192, 194- opinion commenting on the limits on 95 (3d Cir. 2002) (finding jurisdiction to review the denial of a departure request based on family circumstances); United offense). States v. Castano-Vasquez, 266 F.3d 11 228, 231 (3d Cir. 2001) (finding I respectfully disagree with the jurisdiction to review the denial of a majority’s explanation as to why many departure request based on aberrant appeals raising issues related to our behavior); United States v. McQuilkin, jurisdiction to review denials of 97 F.3d 723, 730 (3d Cir. 1996) (finding downward departures result in opinions jurisdiction to review the denial of a that are not precedential. The majority departure request based on physical asserts that this is due to the fact that impairment); United States v. Mummert, “our law in this area is settled.” Maj. Op. 34 F.3d 201, 205 (3d Cir. 1994) at 6-7 n. 4. However, a perusal of just a (remanding for clarification of the few of the host of not precedential reasoning underlying the denial of a opinions on this subject reveals a trend of departure); United States v. Love, 985 confusion and inconsistency. Compare, F.2d 732, 734 n.3 (3d Cir. 1993) (finding e.g., United States v. Jackman, 2003 WL jurisdiction to review the denial of a 21754978 (3d Cir. July 30, 2003) (not departure request based on assistance to precedential) (reviewing for clear error a state and local authorities); United States district court’s determination that the v. Georgiadis, 933 F.2d 1219, 1224 (3d defendant’s mental problems were not Cir. 1991) (finding no jurisdiction to sufficiently atypical to warrant a review the denial of a departure where departure), with United States v. Love, the record did not show that the court 2003 WL 21363404 (3d Cir. June 13, failed to consider the request or 2003) (not precedential) (finding no misunderstood its authority); United jurisdiction to review a district court’s States v. Bierley, 922 F.2d 1061, 1066- determination that the conditions of the 67 (3d Cir. 1990) (finding jurisdiction to defendant’s pre-trial confinement were review the denial of a departure request “not so harsh or inappropriate as to based on the defendant’s role in the warrant a downward departure”).

16 appellate jurisdiction in cases involving error, McQuilkin, 97 F.3d at 730; 4) where denials of departures. In Ruiz, the we cannot discern the basis for a district Supreme Court stated that, while we do court’s refusal to depart, we will remand not have jurisdiction “where the ground for clarification, Mummert, 34 F.3d at 205; for appeal consists of a claim that the and 5) where it is clear that the sentence district court abused its discretion in resulted from, or “rested on,” a district refusing to depart,” we can review where court’s discretionary refusal to depart, the district court’s “sentencing decision notwithstanding a factual or legal error, we rested on a mistaken belief that it lacked do not have jurisdiction to review a claim the legal power to grant a departure.” 536 based on that immaterial mistake, Ruiz, U.S. at 627. This statement of the Court in 536 U.S. at 627. I think the majority Ruiz does not imply any distinction based would not take issue with the first, second, on whether the sentencing court’s and fourth of these “rules,” none of which “mistaken belief” about its authority to directly impact this case. I will, therefore, depart arises from a legal or factual error. focus exclusively on the third and the fifth, Thus, I urge that it is controlling here. and I will explain how our court’s case law leads me to find that such “rules” exist. From the foregoing complicated set of cases, I would posit that there are five The case that most clearly stands basic “rules” that are fairly for the proposition that we can review for straightforward: 1) where a district court clear error in a case like this one is properly apprehends its authority to depart McQuilkin. There, in an opinion authored in a given case, based on an accurate by now-Chief Judge Scirica, we found perception of the facts and the law, we are jurisdiction and reviewed for clear error in not empowered to review, Georgiadis, 933 a case that closely resembles the one F.2d at 1222; 2) where a district court before us. 97 F.3d at 730. The departure mistakenly concludes that it may not provision involved there was § 5H1.4, depart in a given case, and its mistake is which allows a district court to depart based on an incorrect understanding of the downward where the defendant puts forth law or an improper interpretation of the evidence related to an extraordinary Sentencing Guidelines’ dictates, we have physical impairment. Id. In finding that jurisdiction to review the legal issues, and we had jurisdiction, we interpreted the will do so de novo, Castano-Vasquez, 266 District Court’s sentencing decision as F.3d at 229; 3) where a district court follows: mistakenly concludes that it may not depart in a given case, and its mistake is At sentencing, the district based on an improper application of the court found M cQuilkin’s Guidelines arising from a clearly condition was “not that type erroneous determination of the facts, we of an impairment so severe will review the factual findings for clear and complete that the

17 downward departure the defendant challenges as being [was] . . . erroneous, that it cannot depart. None of warranted.” The the cases finding that we lack jurisdiction court’s determination pursuant to Denardi involve this precise that McQuilkin did question. See, e.g., Georgiadis, 933 F.2d not have the kind of at 1223 (stating that “the record does not i m p a i r m e n t show the district court believed described in § 5H1.4 erroneously it lacked authority to depart”). which “warrants” a departure could have The majority seeks to distinguish meant one of two McQuilkin from the instant case, but it things: that cannot truly do so in a way that is M c Q uilkin’s meaningful. In McQuilkin, we were called impairment was not upon to review a district court’s extraordinary enough determination that McQuilkin’s physical to allow the court to impairments were “not extraordinary depart under the enough to allow the court to depart” at all authority of § 5H1.4; under the relevant Guideline provision. 97 or that the nature of F.3d at 730. The defendant did not the impairment was contend that the district court had applied s u f f i c ie n tl y the incorrect Guideline provision or that it extraord inary to had violated a federal statute; rather, he allow the court to asserted that the district court’s factual depart, but that the finding regarding the extent of his court elected not to impairments, which rendered the relevant depart on this Guideline provision inapplicable, was occasion. We erroneous. The District Court determined believe the court t h a t h is im p a ir m e n t s w e r e n ot meant the former, in extraordinary enough to warrant a w h i ch cas e, w e departure, and, on appeal, McQuilkin review this finding argued that they were sufficiently for clear error. extraordinary. McQuilkin has thus established in the jurisprudence of our McQuilkin, 97 F.3d at 730 (emphasis court that the seriousness of an added). Importantly, McQuilkin appears impairment, or, here, the severity of to be the only case in which our court has physical threats, is a factual finding that ever considered whether and how we we review for clear error. How, then, can should engage in our review in a scenario we say that a preliminary determination as like this one, where the District Court to the existence of an impairment or threat concludes, based on factual findings that is anything other than a factual finding that

18 we must review for clear error? Here, as we noted above, the District Court essentially concluded that The most striking flaw in the Minutoli failed to adduce evidence of the majority’s attempt to distinguish type of threats necessary to support a McQuilkin is its complete failure to finding that any duress or coercion in her acknowledge the standard of review that case somehow rendered her situation we applied there. We stated in McQuilkin, extraordinary enough to warrant a clearly and simply, that “we [would] departure. This was erroneous. Applying review [the challenged] finding for clear our own case law, then, leads to a finding error.” Id. We obviously were not that we do have jurisdiction to review for reviewing a purely legal conclusion, as the clear error under these circumstances. majority contends, because our review was for clear error, not de novo. Thus, we The majority seems inclined to characterized the challenge brought before abruptly end its inquiry into the reasoning us in McQuilkin as one directed at a of the District Court upon noticing its use factual determination, rather than a pure of the phrase “while I recognize my ability matter of law, but we did not hesitate to to depart.” However, our interpretation of exercise our jurisdiction. The use of the the basis for the District Court’s decision clear error standard confirms my view that cannot be this superficial. 12 The rest of the McQuilkin dictates a finding that we have Court’s observations indicate that it jurisdiction to review challenges to a actually concluded that the testimony district court’s factual findings that offered by Minutoli would not support or support a denial of a downward departure. authorize a departure under § 5K2.12 in Given McQuilkin, we have jurisdiction to this case. Where a court determines that second-guess a district court’s factual the preconditions for departing under a finding regarding the extraordinary nature given provision of the Sentencing of a defendant’s situation, essentially Guidelines are not satisfied, and where this reviewing the court’s application of the determination has motivated the court in Guidelines in the factual setting presented its sentencing decision, the subsequent to us. How, then, can we not be empowered to second-guess the court’s finding regarding the presence or absence 12 The Government urged at oral in the record of evidence offered by a argument, and again by way of a defendant where, as here, it led to an supplemental letter brief filed after the application of the Guideline in the factual argument, that our precedents preclude setting presented that was clearly us from exercising jurisdiction in every incorrect? Our statutory grant of case where a district court uses this type jurisdiction, in addition to our decision in of standard language to reference its McQuilkin, dictates that we must engage “discretion” under the Guidelines. This in such review. position is simply incorrect.

19 denial cannot be an exercise of incorrect application of the Sentencing “discretion.” The court is simply not Guidelines;” 2) “the refusal to depart authorized to exercise its discretion in such otherwise violates the law;” or 3) “the a case. Under these circumstances, I district court mistakenly believed that it believe McQuilkin makes it clear that we lacked the discretion to depart.” Id. The can review the underlying factual findings court also noted its “steadfast[] refus[al] to for clear error, and, indeed, we are review denials of downward departures obligated to do so. where the district court did not misunderstand its legal authority to III. depart.” Id. at 338. Summing up its Finally, the majority has indicated position, the court stated: “An otherwise that, after considering the divergent proper sentence is not a misapplication of opinions of the Courts of Appeals for the the Sentencing Guidelines simply because First and District of Columbia Circuits the district court, as a matter of discretion, regarding the precise issue that we decide refuses to impose a lesser sentence than here, it is persuaded to adopt the reasoning the law authorizes, even if its factual expressed by the First Circuit in United reasons for doing so are mistaken.” Id. at States v. Dewire, 271 F.3d 333 (1st Cir. 339. As a result, the court determined that 2001). In Dewire, the defendant had pled it lacked jurisdiction over Dewire’s appeal. guilty to “using a means of interstate Id. at 340. commerce to induce a minor to engage in a sexual act.” Id. at 335. The district court But it would be wrong to conclude denied his motion for a downward that the actual result in Dewire, given the departure based on aberrant behavior. Id. facts presented there, is necessarily On appeal, Dewire contended that the inconsistent with what I propose is the court’s refusal to depart “was based on an proper analysis. Setting aside the broader erroneous factual finding that he had holding of the First Circuit, I would agree downloaded child pornography from the that Dewire’s sentence should have been Internet.” Id. The First Circuit held that it affirmed based on the fifth “rule” I posited lacked jurisdiction to review Dewire’s above. That is, Dewire provides an claim related to the downward departure. excellent example of a case in which a Id. fact-finding error was not material to the In so concluding, the court sentencing decision, leaving us without explained its view that there are three jurisdiction to review under § 3742(a)(2), exceptions to the general rule that a district because the court’s sentencing discussion court’s refusal to depart is discretionary actually indicated that its decision was not and not appealable. Id. at 337. Those influenced by the finding that the exceptions, describing cases in which defendant challenged on appeal. Id. at review is permissible, are claims that: 1) 336. The trial judge explicitly stated at “the refusal to depart [resulted from] an sentencing that even if the facts were to fit

20 within the relevant departure provision, he of departure for clear error on the language would still not be inclined to depart due to of 18 U.S.C. §§ 3742(a)(2) and 3742(e). the nature of Dewire’s offense. Id. In The court agreed that it would lack such a case, I would agree that we do not jurisdiction in a case where the district have jurisdiction to review because it is court “correctly understood the Sentencing clear that the sentence did not result from Guidelines and the evidence, knew [it] the allegedly mistaken factual finding. could depart, and yet decided to stick to the Guideline range.” Id. at 1343. The most relevant and persuasive However, the court also observed that, opinion on the issue before us, dealing where “a district judge sticks to the with a very similar factual and procedural Guideline range because he mistakenly context, is the decision of the Court of believes he lacks authority to do otherwise, Appeals for the District of Columbia in his sentencing decision is reviewable on United States v. Sammoury, 74 F.3d 1341 appeal.” Id. at 1344. Because such a (D.C. Cir. 1996). In Sammoury, the court situation exists where “clearly erroneous concluded that it did have jurisdiction to factual mistakes [are] used in determining review a challenge to the factual findings whether to depart,” the court concluded underlying a sentencing decision. There, that § 3742(a)(2) provides a court of the defendant had pled guilty to bank fraud appeals with the power to review based on her misappropriation of funds challenges to the sentencing court’s factual that were donated to her nonprofit findings. Id. at 1345. The court based this employer. Id. at 1341. The district court conclusion on its interpretation of § 3742, denied her motion seeking a downward as well as its view that “[i]t is no more an departure based on coercion, duress, and infringement on the discretion of trial diminished capacity due to abuse by her judges to set aside a sentence when the husband. Id. On appeal, Sammoury refusal to depart rests on a clearly asserted that the sentencing judge erroneous factual mistake than to set aside misapprehended the evidence offered in a sentence when the refusal stems from a support of the departure motion and misinterpretation of the Guidelines.” Id. erroneously concluded that the abuse was Upon reaching this conclusion, the court not the cause of Sammoury’s crime. Id. at went on to review the merits of 1343, 1346. After a lengthy discussion Sammoury’s claim, and it ultimately regarding appellate jurisdiction over such determined that the district court’s findings a claim, the D.C. Circuit determined that it were not clearly erroneous. Id. at 1346. was empowered to review the sentence. Id. at 1345. Given my reading of our precedents described above, I believe that the D.C. The Sammoury court based its Circuit’s opinion in Sammoury is quite conclusion that it had jurisdiction to consistent with our jurisprudence and review factual findings underlying a denial supp orts our review power here.

21 However, a review of the case law of the the Courts of Appeals for the D.C., other courts of appeals reveals that there is Second, Fifth, and Ninth Circuits have probably a circuit split on the precise issue reviewed for clear error under similar before us here.13 The Courts of Appeals circumstances. See Sammoury, 74 F.3d at for the First and Fourth Circuits would 1343-45 (prov iding a n exte nsiv e apparently dismiss this case based on a discussion of the statutory basis for lack of appellate jurisdiction. See United reviewing findings of fact underlying a States v. Underwood, 970 F.2d 1336 (4th denial of departure for clear error); United Cir. 1992); United States v. Pierro, 32 F.3d States v. Ardoin, 19 F.3d 177, 181 (5th 611 (1st Cir. 1994).14 On the other hand, Cir. 1994) (“We review the findings of fact under the ‘clearly erroneous’ standard, 13 but legal application of the Guidelines is I say “probably” because there is a reviewed de novo.”); United States v. lack of consistency in the reasoning of Mickens, 977 F.2d 69, 72 (2d Cir. 1992) some courts, as noted infra in note 8. (reviewing the district court’s factual Additionally, some courts, including our findings for clear error where the appeal own in McQuilkin, have apparently challenged the denial of a downward adopted a view with minimal discussion departure sought based on various of the issue. mitigating circumstances); United States v. 14 Roe, 976 F.2d 1216, 1217 (9th Cir. 1992) While Minutoli indicates that the (“We review for clear error the [district] Courts of Appeals for the Seventh and court’s findin g that a partic ular Eleventh Circuits would also find that circumstance was not extraordinary”). they lack jurisdiction in a case like this one, I do not find that to be certain. The I submit that our court is most Court of Appeals for the First Circuit properly aligned with the latter four also notes cases from those courts of circuits, in part because I find the appeals in support of its position in reasoning of those courts – and particularly Dewire. 271 F.3d at 338 n.5 (citing that of the District of Columbia Circuit in United States v. Steels, 38 F.3d 350 (7th Sammoury – to be more persuasive, but Cir. 1994), and United States v. also because I believe that our decision in Patterson, 15 F.3d 169 (11th Cir. 1994)). McQuilkin has already placed us on that However, those cases did not involve side of the issue. I further submit that the allegations of clearly erroneous factual findings; rather, the defendants in Steels and Patterson apparently challenged the district courts’ understanding of the yet been squarely presented with it. relevant laws and Guideline provisions. Indeed, even the Dewire court noted It thus remains unclear how those courts conflicting authority from the Seventh would decide the jurisdictional question Circuit on this question. 271 F.3d at 338 presented in this case, as they have not n.5.

22 majority view parts company with discretionary call was actually made unless McQuilkin and, as a result, runs afoul of it is clear from the record that the our court’s Internal Operating Procedures, sentencing decision did not result from § 9.1. that determination. And where, as here, the district court’s determination that it IV. lacks authority is based upon a clearly In light of the foregoing discussion, erroneous factual finding, we have I cannot agree that we lack jurisdiction to jurisdiction to review and correct that error consider Minutoli’s appeal. Where it is pursuant to both the relevant statute and based on a plainly mistaken determination our own case law. The majority concludes of the facts, a district court’s decision that otherwise and refuses to address the clear a downward departure is not warranted or error in the factual findings underlying the authorized under the Guidelines cannot be District Court’s sentencing decision here. insulated from review. As I read the Therefore, I must respectfully dissent, and relevant authority, there is neither a I strongly suggest that, in order for the statutory nor a binding precedential majority’s view to stand, this case must be mandate that we lack jurisdiction in such a addressed by the court en banc. case. We should remain vigilant as we examine and construe the language used by the district courts in reaching sentencing decisions, as the ramifications have serious implications for criminal defendants. Specifically, we must carefully distinguish those situations in which a district court would be authorized to exercise its discretion from those in which it is not actually empowered to do so. We cannot simply focus on a court’s use of a magic phrase, such as “I recognize that I have discretion under the Guidelines,” and neglect to consider the context in which such a statement is made. The District Court here used such a standard phrase as it noticed its general authority under the Guidelines. But where, as here, a district court proceeds to make a determination that the requirements of a given departure provision are not met in a given case, we must conclude that no