                                                                                                                           Opinions of the United
1997 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-28-1997

United States v. Sally
Precedential or Non-Precedential:

Docket 96-1864




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Recommended Citation
"United States v. Sally" (1997). 1997 Decisions. Paper 113.
http://digitalcommons.law.villanova.edu/thirdcircuit_1997/113


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Filed May 28, 1997

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 96-1864

UNITED STATES OF AMERICA,

Appellee

v.

ALBERT SALLY,
a/k/a "PJ"

Albert Sally,
Appellant

ON APPEAL FROM THE
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
(D.C. Criminal No. 90-cr-00107-8)
District Judge: Hon. John P. Fullam

Argued: April 14, 1997

Before: SCIRICA, COWEN, and NYGAARD, Circuit Judges

(Opinion Filed May 28, 1997)

Peter F. Schenck (Argued)
Kristen R. Hayes
Suite 1250
Office of United States Attorney
615 Chestnut Street
Philadelphia, PA 19106

Counsel for the Appellee
Elizabeth K. Ainslie (Argued)
Ainslie & Bronson
1101 Market Street
2630 One Reading Center
Philadelphia, PA 19107

Counsel for the Appellant

OPINION OF THE COURT

NYGAARD, Circuit Judge:

Albert Sally appeals his sentence for convictions on drug
charges stemming from participation in a multi-member
crack conspiracy. Sally argues that the district court erred
by failing to depart downward from the guideline range
under Section 5H1.1 of the United States Sentencing
Guidelines because of his youth when he committed the
offense and evidence of his subsequent maturation. We find
no error in the district court's refusal to depart under
§ 5H1.1. However, in light of the recent decisions in Koon v.
United States, ___ U.S. ___, 116 S.Ct. 2035 (1996), and
United States v. Brock, 108 F.3d 31 (4th Cir. 1997), we will
vacate Sally's sentence and remand the cause to the district
court for it to determine whether Sally is entitled to a
downward departure based on his post-conviction
rehabilitation efforts.

I.

Albert Sally was a bagger and look-out for a crack
conspiracy from August 1988 through February 1989. He
was seventeen years old when he became involved in the
conspiracy and he turned eighteen on November 2, 1988,
some three and one-half months before the conspiracy
ended. As a result of his participation in the conspiracy,
Sally was indicted and convicted of drug charges as well as
charges related to the use of a gun in drug trafficking. He
was sentenced on December 17, 1991.

More than five years later, on June 24, 1996, Sally's
convictions for using a gun during drug trafficking were

                   2
dismissed pursuant to a § 2255 motion. As a consequence,
his sentence was vacated and a resentencing hearing held
on September 24, 1996. At the hearing, Sally's counsel
requested that the district court consider a downward
departure based on a combination of two factors: (1) the
fact that Sally was seventeen years old during half the time
he participated in the conspiracy; and (2) the fact that since
he was first jailed, Sally had demonstrated increased
maturity by earning a GED and an additional nine college
credits. These factors, Sally's counsel argued, presented
sufficiently "unusual circumstances" to permit the court to
depart downward, notwithstanding the Guidelines' ordinary
prohibition against considering age as a factor in deciding
to depart from the Guidelines.

The district court rejected Sally's request for a downward
departure, reasoning as follows:

I expressly conclude in the circumstances of this case
I do not have the authority to depart downward . . ..
My present conclusion is given the Guideline
requirement [that] ordinarily age is not a factor for a
downward departure I don't think I can find in this
case it is sufficiently extraordinary to permit me to do
it. Therefore, I would conclude I lack the authority to
do it. If I had the authority to do it, I would seriously
consider a downward departure still further not
because I think the sentence originally imposed was
incorrect but as sort of a reward to the Defendant for
having made valiant efforts to turn his life around
during the time he has been in jail.

The district court then proceeded to sentence Sally to 168
months, which was the lowest sentence available in Sally's
revised Guidelines range. This timely appeal followed.

II.

On appeal, Sally presents two arguments. First, he
asserts that the district court incorrectly concluded that it
lacked the discretion to grant a downward departure under
§ 5H1.1 based on his age. Second, he contends that the
facts of his case are extraordinary enough to warrant using
his age as a factor to support a downward departure.

                     3
Before oral argument, we asked the parties to address a
third issue: namely, whether post-conviction rehabilitation
is an appropriate basis for a downward departure.

We review the question of whether the district court had
the authority to depart downward based on the factor of
age under an abuse of discretion standard. See United
States v. Romualdi, 101 F.3d 971, 973 (3d Cir. 1996) ("[A]
district court by definition abuses its discretion when it
makes an error of law." ) (quoting Koon, 116 S.Ct. at 2047).
In contrast, we lack jurisdiction to review a refusal to
depart downward "when the district court, knowing it may
do so, nonetheless determines that departure is not
warranted." United States v. McQuilkin, 97 F.3d 723, 729
(3d Cir. 1996) (citations omitted).

III.

In § 5H1.1, the Sentencing Commission has foreclosed
departures based on age in all but the most extraordinary
cases. The section states in pertinent part:

Age (including youth) is not ordinarily relevant in
determining whether a sentence should be outside the
applicable guideline range. Age may be a reason to
impose a sentence below the applicable guideline range
when the defendant is elderly and infirm and where a
form of punishment such as home confinement might
be equally efficient as and less costly than
incarceration.

We have held previously that § 5H1.1 prohibits departures
based on age "except in extraordinary circumstances."
United States v. Shoupe, 929 F.2d 116, 120 (3d Cir. 1991);
accord United States v. Higgins, 967 F.2d 841, 845-46 (3d
Cir. 1992) ("The language of the guideline policy statements
indicates that only when any one of [the factors not
`ordinarily relevant'] can be characterized as extraordinary
does the district court have discretion to depart from the
guideline's sentencing range."). These precedents are
consistent with the approach established in the Guidelines
themselves:

An offender characteristic or other circumstance that is
not ordinarily relevant in determining whether a

                    4
sentence should be outside the applicable guideline
range may be relevant to this determination if such
characteristic or circumstance is present to an unusual
degree and distinguishes the case from the "heartland"
cases covered by the guidelines in a way that is
important to the statutory purposes of sentencing.

U.S.S.G. § 5K2.0 (emphasis added). However, as the
Commentary to § 5K2.0 stresses, "In the absence of a
characteristic or circumstance that distinguishes a case as
sufficiently atypical to warrant a sentence different from
that called for under the guidelines, a sentence outside the
guideline range is not authorized." Moreover, it is
anticipated that cases where extraordinary circumstances
warrant a sentence outside the guideline range "will be
extremely rare." U.S.S.G. § 5K2.0, comment.

Sally concedes all this, but contends that the district
court did not know that it had the authority to depart
based on his age. In support of this assertion, Sally points
to a statement made by the district court at the
resentencing hearing: "If I had the authority to do it, I
would seriously consider a downward departure . . . ." This
statement, however, must be read in the context of the
statement that directly preceded it: "My present conclusion
is given the Guideline requirement [that] ordinarily age is
not a factor for a downward departure I don't think I can
find in this case it is sufficiently extraordinary to permit me
to [depart downward]." (Emphasis added). Indeed, read in
their entirety, the district court's comments demonstrate
that it clearly understood its authority to depart downward
under § 5H1.1 -- the court could depart downward only if
it believed Sally's age to be a "sufficiently extraordinary"
factor warranting departure under the facts of the case.
However, as the district court explicitly stated for the
record, it could not find that the facts of Sally's case were
so "sufficiently extraordinary" as to permit his age to be
used as a factor supporting a downward departure. Simply
stated, the district court applied the proper legal standards
under § 5H1.1 and hence, we find no error here.

Sally's second argument is equally unavailing. He
contends that if age is ever to be used as a factor
supporting a downward departure, then it should be used

                     5
under the facts of this case. As noted earlier, however, we
do not have jurisdiction to review Sally's claim that the
unusual facts of his case warrant a downward departure
based on age. See McQuilkin, 97 F.3d at 729; accord United
States v. Evans, 49 F.3d 109, 111 (3d Cir. 1995) ("[A]
discretionary decision by the trial judge that a departure is
not justified is not reviewable."). Indeed, having satisfied
ourselves that the district court applied the proper legal
standards under § 5H1.1 and fully understood the scope of
its discretion to depart from the Guidelines on the basis of
Sally's age, we cannot hear a challenge to the merits of the
district court's discretionary decision not to depart from the
Guidelines. McQuilkin, 97 F.3d at 729. Accordingly, we will
not review the district court's valid exercise of its discretion
to deny Sally's request for a downward departure under
§ 5H1.1.

IV.

In addition to Sally's arguments alleging error in the
district court's application of § 5H1.1, we asked the parties
to address the question of whether post-conviction
rehabilitation is an appropriate basis for a downward
departure. At oral argument, both sides agreed that in light
of the decision in Brock, and the analysis of Koon therein,
reliance on post-offense rehabilitation efforts as a factor
warranting a downward departure was indeed proper.
Moreover, both parties also agreed that based on the
comments of the judge at the resentencing hearing, it was
clear that the district court believed that it lacked the
authority to depart downward based on Sally's post-
conviction rehabilitation efforts. We have not previously
considered whether post-conviction rehabilitation efforts
may serve as a basis for a downward departure from the
Guidelines. We reach that question today and conclude
that they may.

We begin our analysis with the decision in Brock. Brock
pleaded guilty to two counts of credit card fraud. The
district court, despite expressing a desire to depart
downward, refused the defendant's request for a downward
departure based upon his post-offense rehabilitation efforts
because it believed it lacked the authority to depart based

                    6
on an earlier Fourth Circuit precedent. 108 F.3d at 32-33.
On appeal, the Brock court vacated the defendant's
sentence, holding that "extraordinary or exceptional efforts
at rehabilitation could possibly constitute a proper basis for
consideration of a downward departure." Id. at 32.

In reaching its decision, the Brock court relied on the
Supreme Court's opinion in Koon, which it read as support
for the conclusion that the factor of "post-offense
rehabilitation" had not been forbidden by the Sentencing
Commission as a basis for departure under the appropriate
circumstances. Id. at 33-34. Since post-offense
rehabilitation was not a forbidden factor, the Brock court
next sought to fit the factor into one of the other categories
identified in Koon: (1) the factor was encouraged by the
Commission as a basis for departure and was either (a)
taken into account in the applicable guideline itself or (b)
not taken into account in the guideline; (2) the factor was
discouraged by the Commission as a basis for departure; or
(3) the factor was unmentioned by the Commission. Id. at
34 (citing Koon, 116 S.Ct. at 2045). Ascertaining which
category the post-offense rehabilitation factor occupied was
important, the court noted, because "Koon instructs that
different inquiries are germane depending upon which of
these categories a factor falls into." Id. As the court
proceeded to explain the Koon framework:

If a factor is one upon which the Commission
encourages departure, and it is not taken into account
by the applicable guideline, a court may exercise its
discretion and depart on that basis. If an encouraged
factor is taken into account in the applicable guideline,
or if a factor is a discouraged one, then departure is
permissible only if the factor is present to an
exceptional degree or in some other way makes the
case different from the ordinary case where the factor
is present. Similarly, if a factor is neither encouraged
nor discouraged, but listed by the Commission as one
appropriately considered in applying an adjustment to
the guidelines, a court may depart only if the factor is
present to such an exceptional or extraordinary degree
that it removes the case from the heartland of
situations to which the guideline was fashioned to

                    7
apply. Finally, if a factor is one that is unmentioned by
the guidelines, a court must, taking into consideration
the structure and theory of both relevant individual
guidelines and the guidelines taken as a whole,
determine whether the circumstances presented are
sufficient to remove the case from the heartland of the
applicable guideline.

Id. at 34-35 (internal citations and quotations omitted).

Adopting the reasoning of an earlier Fourth Circuit case,
the Brock court concluded that the Guidelines had already
taken into account the factor of post-offense rehabilitation
because the commentary to the Guidelines expressly
instructed that such efforts be considered in determining a
defendant's eligibility for an acceptance of responsibility
adjustment pursuant to § 3E1.1. Id. at 35; see also
U.S.S.G. § 3E1.1 Application Note 1(g). Therefore, the court
concluded, a departure based on post-offense rehabilitation
was warranted where the factor is "present to such an
exceptional degree that the situation cannot be considered
typical of those circumstances in which an acceptance of
responsibility adjustment is granted." 108 F.3d at 35. Thus,
the Brock court remanded the cause to the district court "to
set forth specific factual findings concerning what efforts on
Brock's part it considered exceptional enough to make the
case atypical of those situations in which the acceptance of
responsibility adjustment usually applies based on post-
offense rehabilitation." Id. at 35 n.2.

We agree with the Brock court's reasoning and find its
analysis and application of Koon persuasive. We hold that
post-offense rehabilitation efforts, including those which
occur post-conviction, may constitute a sufficient factor
warranting a downward departure provided that the efforts
are so exceptional as to remove the particular case from the
heartland in which the acceptance of responsibility
guideline was intended to apply. Indeed, we find no reason
to distinguish between post-offense and post-conviction
rehabilitation efforts in this context -- post-conviction
rehabilitation efforts are, by definition, post-offense
rehabilitation efforts and hence should be subject to at
least equivalent treatment under the Guidelines.

                    8
We find additional support for our conclusion in our own
cases. We have already held that "a sentencing court may
depart downward when the circumstances of a case
demonstrate a degree of acceptance of responsibility that is
substantially in excess of that ordinarily present." United
States v. Lieberman, 971 F.2d 989, 996 (3d Cir. 1992).
Moreover, we recently reaffirmed this holding in Evans, 49
F.3d at 114, where we noted that "courts have recognized
that a defendant's ameliorative post-arrest conduct may
justify a departure even though section 3E1.1 rewards
acceptance of responsibility." (citing Lieberman, 971 F.2d at
996) (internal quotations omitted). Collectively, these
decisions clearly establish that when an offender
demonstrates an exceptional or extraordinary degree of
responsibility, a court may depart downward. In our view,
post-offense or post-conviction rehabilitation efforts are
factors that fall squarely within the scope of § 3E1.1 and
thus exceptional or extraordinary examples of rehabilitation
efforts may well warrant a downward departure.1

In this case, there is no doubt that the district court
believed that it lacked the legal authority to depart
downward based on Sally's post-conviction rehabilitation
efforts. Indeed, as the district judge explicitly stated at
Sally's resentencing hearing:

If I had the authority to do it, I would seriously
consider a downward departure still further not
because I think the sentence originally imposed was
incorrect but as sort of a reward to the Defendant for
having made valiant efforts to turn his life around
during the time he has been in jail.
_________________________________________________________________

1. In United States v. Pharr, 916 F.2d 129, 131 (3d Cir. 1990), we stated
that "[s]elf-improvement is not the type of conduct contemplated by the
acceptance of responsibility provisions of the guidelines." Since this
decision, however, §3E1.1 has been amended specifically to include
"post-offense rehabilitative efforts (e.g., counseling or drug treatment),"
as an appropriate consideration in determining whether a defendant
qualifies for an adjustment under the acceptance of responsibility
guideline. See U.S.S.G. §3E1.1 Application Note 1(g). Therefore, it is now
clear that post-offense and post-conviction rehabilitation efforts are
factors taken into account by the acceptance of responsibility provision
of the Guidelines.

                    9
Given this clear expression of the district court's
willingness to consider a downward departure based on
Sally's post-conviction rehabilitation efforts, as well as the
government's concession at oral argument that the district
judge erroneously believed he lacked the authority to depart
downward based on this factor, we conclude that Sally's
sentence should be vacated and the cause remanded to the
district court for resentencing. On remand, the district
court must determine whether Sally's post-conviction
rehabilitation efforts are remarkable and indicate real,
positive behavorial change. In reaching this decision, the
district court should set forth specific findings concerning
what post-conviction rehabilitation efforts Sally has made
that demonstrate a degree of acceptance of responsibility
expressed by post-offense rehabilitation that is
substantially in excess of that ordinarily present.

Mindful of the Supreme Court's teaching that "[a] district
court's decision to depart from the Guidelines . . . will in
most cases be due substantial deference, for it embodies
the traditional exercise of discretion by a sentencing court,"
Koon, 116 S.Ct. at 2046, we are reluctant to announce any
general principles regarding what post-conviction
rehabilitation efforts may be considered so extraordinary or
exceptional as to warrant a downward departure. Indeed,
based on the sentencing court's "institutional advantage
over appellate courts in making these sorts of
determinations," id. at 2047, we think it advisable to leave
sentencing courts to make these determinations on a case-
by-case basis, relying on the particular facts and
circumstances of each case in weighing whether a
particular defendant's post-conviction rehabilitation efforts
warrant a downward departure. Nonetheless, we do believe
that, at a minimum, there must be evidence demonstrating
that a defendant has made concrete gains toward "turning
his life around" before a sentencing court may properly rely
on extraordinary post-conviction rehabilitation efforts as a
basis for a downward departure. Unlike the usual
adjustment for acceptance of responsibility where
defendants may all-too-often be tempted to feign remorse
for their crimes and be rewarded for it, we view the
opportunity for downward departures based on
extraordinary or exceptional post-conviction rehabilitation

                    10
efforts as a chance for truly repentant defendants to earn
reductions in their sentences based on a demonstrated
commitment to repair and to rebuild their lives. As such,
we conclude that, as a baseline, downward departures
based on extraordinary or exceptional post-conviction
rehabilitation efforts are proper provided that the
sentencing court makes factual findings demonstrating that
the defendant has achieved real gains in rehabilitating
himself and changing his behavior.

V.

In summary, we conclude that the district court has the
authority to depart downward based on extraordinary or
exceptional post-conviction rehabilitation efforts.
Accordingly, we will vacate Sally's sentence and remand the
cause to the district court for it to determine whether
Sally's post-conviction rehabilitation efforts qualify him for
a downward departure.

A True Copy:
Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

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