                                                                                                                           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Precedential or Non-Precedential: Precedential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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PRECEDENTIAL                                 Attorney for Appellant

    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

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