UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 97-4218

BERNARD F. ROBINSON,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Robert E. Payne, District Judge.
(CR-95-225-A)

Submitted: December 30, 1997

Decided: March 6, 1998

Before ERVIN and MICHAEL, Circuit Judges, and
BUTZNER, Senior Circuit Judge.

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Vacated and remanded by unpublished per curiam opinion.

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COUNSEL

Gerald I. Fisher, FISHER & HANSEN, P.C., Washington, D.C., for
Appellant. Helen F. Fahey, United States Attorney, Lisa E. Perkins,
Special Assistant United States Attorney, Alexandria, Virginia, for
Appellee.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Bernard F. Robinson was convicted by a jury of distributing more
than five grams of crack cocaine (three counts) and possessing more
than five grams of crack cocaine with intent to distribute (three
counts), in violation of 21 U.S.C.A. § 841 (West 1981 & Supp. 1997).
Robinson appeals the 97-month sentence he received. He argues that
the district court failed to understand that it had the authority to depart
to a sentence of 30 months to make him eligible for the Bureau of
Prisons' Shock Incarceration Program, see 18 U.S.C. § 4046 (1994),
and to depart because of a combination of factors which did not war-
rant a departure when considered individually. For the reasons
explained below, we vacate the sentence and remand for resentencing.

Robinson sold crack to an undercover police officer in northern
Virginia on four occasions. The total amount of crack involved was
58.24 grams and the recommended guideline range was 97-121
months. Each of the counts involved less than fifty grams of crack,
however, making the mandatory minimum sentence five to forty
years. See 18 U.S.C.A. § 841(b)(1)(A). Robinson did not initially
request a departure, but at the first sentencing hearing the district
court inquired sua sponte whether Robinson could qualify for a two-
level reduction in offense level under U.S. Sentencing Guidelines
Manual § 2D1.1(b)(4) (1995). Subsection (b)(4) provides for a two-
level reduction if the defendant meets the criteria for a sentence below
the mandatory minimum, see USSG § 5C1.2 (the "safety valve" pro-
vision), and his offense level is 26 or more. Robinson's offense level
was 30. The court continued the sentencing to allow Robinson an
opportunity to comply with the fifth requirement: that the defendant
provide complete and truthful information to the government about
the offense by the time of sentencing. See USSG § 5C1.2(5).

At the second sentencing hearing, the government agreed that Rob-
inson should receive the reduction under USSG § 2D1.1(b)(4). The

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court decided that Robinson did not qualify for an acceptance of
responsibility adjustment, and that he had not obstructed justice. Rob-
inson's guideline range thus remained at 97-121 months. Robinson
then asked for a downward departure to a sentence of 30 months so
that he could qualify for shock incarceration. As grounds for the
departure, he argued that his conduct had been an aberration and that
his mother (with whom he lived) suffered from rheumatoid arthritis
and needed his help with daily tasks. After hearing Robinson's
mother testify that she was still able to work despite her painful con-
dition, the district court determined that Robinson's family circum-
stances were not sufficiently extraordinary to justify a departure on
that basis.

The court then seriously considered a departure below the five-year
mandatory minimum to permit Robinson to qualify for shock
incarceration,1 but decided against a departure, finding that Robin-
son's crack sales were not aberrational conduct. The court noted that
in his dealings with the undercover officer Robinson was "reasonably
savvy," and "indicated that he had cocaine available in substantial
quantities on a regular basis."

On appeal, Robinson argues that the district court did not under-
stand its authority to depart either solely to make shock incarceration
available to him or on that ground combined with another factor, i.e.,
his mother's need for his assistance at home because of her ill health.
When the district court exercises its discretion by refusing to depart,
its decision is not reviewable on appeal. See United States v. Bayerle,
898 F.2d 28, 31 (4th Cir. 1990). However, when the district court
bases its decision not to depart on a perceived lack of legal authority
to do so, the issue on appeal is a legal one which is reviewed de novo.
See id.; United States v. Hall, 977 F.2d 861, 863 (4th Cir. 1992). In
this case, our examination of the district court's remarks at sentencing
discloses that the court was proceeding on the assumption that it had
the authority to depart on either of the grounds urged by Robinson,
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1 Robinson relied on United States v. Williams, 65 F.3d 301, 306-07 (2d
Cir. 1995) (departure to facilitate defendant's admission to drug treat-
ment program), and United States v. Martin, 827 F. Supp. 232 (S.D.N.Y.
1993) (departure from 48 to 30 months to permit defendant to qualify for
shock incarceration).

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if a departure was warranted.2 Therefore, we will not review the
court's decision not to depart on those grounds considered individu-
ally.

In an extraordinary case, a combination of factors which are "not
ordinarily relevant" to a departure decision may cause the case to "dif-
fer significantly from the `heartland' of cases in a way that is impor-
tant to the statutory purposes of sentencing, even though none of the
characteristics or circumstances individually distinguishes the case,"
and, therefore, a departure may be justified. USSG§ 5K2.0, com-
ment. Amendment 508, effective on November 1, 1994, made a
departure permissible in an unusual case for a combination of factors
not ordinarily relevant to departure decision, thus superseding United
States v. Goff, 907 F.2d 1441, 1447 (4th Cir. 1990) (holding that com-
bination of factors which do not independently warrant departure may
never be basis for departure).

Although Robinson did not specifically argue that his desire to par-
ticipate in a shock incarceration program and his mother's condition,
in combination, could be a separate basis for departure, he linked the
two factors in his departure request. In response, the government
argued, incorrectly, that each factor could only be considered inde-
pendently. The district court did not discuss the possibility of a depar-
ture based on a combination of the two factors. Because it appears
that the district court did not understand its authority to consider the
interplay of the two factors when deciding whether to depart down-
ward, we vacate the sentence and remand for resentencing. On
remand, the district court should consider the commentary in USSG
§ 5K2.0 before determining whether a departure is warranted.

We dispense with oral argument because the facts and legal conten-
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2 Family ties and responsibilities are "not ordinarily relevant," see
USSG § 5H1.6, p.s. The potential for rehabilitation in a shock incarcera-
tion program is an unmentioned factor. See Koon v. United States, ___
U.S. ___, 64 U.S.L.W. 4512 (U.S. June 13, 1996) (Nos. 94-1664/8842)
(all but forbidden factors are potential bases for departure); see also
United States v. Brock, 108 F.3d 31, 34-35 (4th Cir. 1997) (applying
Koon where departure sought on basis of unmentioned factor).

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tions are adequately presented in the materials before the court and
argument would not aid the decisional process.

VACATED AND REMANDED

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