                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-4-2006

USA v. Samuelson
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4280




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                                                              NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ____________

                                    No. 05-4280
                                   ____________

                          UNITED STATES OF AMERICA

                                           v.

                            KENNETH J. SAMUELSEN,

                                         Appellant
                                   ____________

                   On Appeal from the United States District Court
                       for the Middle District of Pennsylvania
                               (D.C. No. 05-cr-00159)
                    District Judge: Honorable James M. Munley
                                   ____________

                     Submitted Under Third Circuit LAR 34.1(a)
                                September 13, 2006

              Before: FUENTES, FISHER and McKAY,* Circuit Judges.

                               (Filed: October 4, 2006)
                                    ____________

                             OPINION OF THE COURT
                                  ____________




      *
        The Honorable Monroe G. McKay, United States Circuit Judge for the Tenth
Circuit, sitting by designation.
FISHER, Circuit Judge.

       At issue in this appeal is whether a district court must, when imposing sentence on

a criminal defendant, explicitly consider and resolve a pending motion for downward

departure. We have previously rejected this claim, and we now reaffirm that holding in

light of United States v. Booker, 543 U.S. 220 (2005).

                                            I.

       Kenneth J. Samuelsen started embezzling money in early 2002. Only a few

months after accepting a position as accounting manager for a Pennsylvania linen supply

company, he began to steal and forge company checks. The checks were made payable to

credit card companies or an investment firm, with the proceeds being used to subsidize

his increasingly lavish lifestyle. The scheme was concealed through false entries in the

company’s check registry, and it went undetected for more than two years, until federal

agents were alerted to the theft in November 2004. Samuelsen had, by that time, stolen

more than $1.7 million. (A. 177-83.)

       Samuelsen immediately admitted to the crime. He explained that he had initially

engaged in the scheme in order to satisfy credit card debts but that he had soon developed

a “shopping addiction,” leading to more purchases and more embezzlement. He claimed

that psychological counseling would be necessary to address the problem. (A. 182-83.)

       Samuelsen pled guilty in April 2005 to one count of possession of forged checks

with the intent to deceive another person, in violation of 18 U.S.C. § 513(a). A



                                            2
presentence report found, in accordance with the plea agreement, that the statutory

maximum term of imprisonment under the United States Code was ten years and that the

range of imprisonment prescribed by the United States Sentencing Guidelines was thirty-

seven to forty-six months. The report mentioned the possibility of a defense motion for

downward departure, based on Samuelsen’s “personal background and psychological

characteristics,” but it did not offer any recommendation on the disposition of such a

motion. (A. 177, 191-92; Presentence Report 3-4, 18, 20.)

       The anticipated motion, titled “motion for sentence below the guidelines range or

for downward departure,” was filed thereafter. It asserted that a downward departure was

appropriate under section 5K2.0 of the Guidelines based on two considerations:

(1) “extraordinary post-offense rehabilitation” and (2) “acceptance of responsibility

substantially in excess of that ordinarily present.” The motion argued that Samuelsen had

demonstrated exceptional rehabilitation by obtaining a new job and commencing

psychological counseling and that he had shown outstanding acceptance of responsibility

by immediately admitting his guilt, assisting in the investigation of the crime, and making

full restitution to the victim company. Psychological reports attached to the motion

attributed Samuelsen’s criminal conduct to self-esteem issues and confirmed his remorse

and efforts to rehabilitate. (A. 35-40, 154-55, 164-65.)

       Three witnesses testified at the sentencing hearing, held in September 2005. An

officer of the victim company stated that the embezzlement had seriously harmed the



                                             3
business’s efforts to expand and had damaged its reputation in the community. She also

noted that, although full restitution had been made, most of the money had been secured

through the seizure of Samuelsen’s investment account and the remainder –

approximately $700,000 – had been paid by Samuelsen’s mother on his behalf. An

examining psychologist opined, consistent with the previously submitted reports, that

Samuelsen’s criminal activity could be attributed to feelings of inferiority and stated that

Samuelsen was unlikely to repeat his crimes in light of ongoing treatment. Samuelsen’s

mother also testified, indicating that she had loaned the restitution money to her son in

order to “make things right” for the victim company as quickly as possible. She further

noted that her son had repaid approximately $100,000 to her, through the sale of “[c]ars

and jewelry.” (A. 90-113.)

       After granting counsel and the defendant an opportunity to speak, the District

Court offered an evaluation of the evidence. It characterized Samuelsen as “basically a

good man who made a very serious mistake” and suggested that his criminal conduct was

likely attributable to psychological problems. It agreed with the defense witnesses that

Samuelsen posed a low risk of recidivism. (A. 113-26.)

       But the District Court concluded that these considerations did not warrant a

sentence below the Guidelines range. Samuelsen had “a good family” and “a great

education,” and his self-esteem issues could not excuse his criminal conduct. He had

stolen an “enormous” amount of money to indulge himself but, as the pre-sentence report



                                              4
pointed out, he had not even satisfied his child support obligations. He had not “[come]

forward and made a confession” or “[gone] to the employer and . . . authorities and

unveiled all of the problems,” but had waited until law enforcement had discovered the

theft before admitting to the crime. That crime had caused serious harm to the business;

yet, he was avoiding a lengthy term of imprisonment – likely above fifty-one months – by

virtue of a favorable plea agreement. (A. 124-28.)

       The District Court imposed, based on its weighing of the factors under 18 U.S.C.

§ 3553(a), a sentence of thirty-seven months’ imprisonment, at the low end of the

Guidelines range. It noted that the sentence “would have been more, except the

[g]overnment has made a strong appeal, making a recommendation of [thirty-seven

months].” (A. 123-24, 128.)

       One item that the District Court failed to mention explicitly during the hearing was

the motion for downward departure. It addressed the exhibits to the motion, including the

psychological reports, but it closed the proceedings – without objection by the parties –

without stating whether the request for a downward departure was granted or denied. It

did, however, indicate in the written statement of reasons accompanying the judgment of

sentence that “the court finds no reason to depart.” (A. 195.)

       The lack of any further explanation forms the basis for this appeal. Samuelsen

argues that “[t]he sentence was imposed in violation of the law because the District Court

failed to consider and decide [the] motion for downward departure on account of . . .



                                             5
exceptional post-offense actions to rehabilitate himself and take full responsibility for his

crime.” 1 We have jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291. See

United States v. Cooper, 437 F.3d 324, 327-28 & n.4 (3d Cir. 2006); see also United

States v. King, 454 F.3d 187, 189 & n.1 (3d Cir. 2006).

                                              II.

       The decision in Booker had a titanic effect on federal sentencing. By excising

those provisions of the Sentencing Reform Act that had previously required district courts

to impose a sentence within the range recommended by the United States Sentencing

Guidelines, the Supreme Court granted to district courts the discretion to issue the

sentence that they believe best fits the particular circumstances of the case, in light of the

broad objectives set forth in 18 U.S.C. § 3553(a). See Booker, 543 U.S. at 258-64; see

also Cooper, 437 F.3d at 329-32.

       But, although adherence to the Guidelines range is no longer mandatory,

application of them still is. Cooper, 437 F.3d at 329-32. The Sentencing Reform Act still

requires that district courts, when imposing sentence, consider the “sentencing range . . .

as set forth in the [G]uidelines.” 18 U.S.C. § 3553(a)(4). District courts are obliged by




       1
        Defense counsel did not raise this objection during sentencing proceedings, an
omission that would arguably justify plain-error review. See United States v. King, 454
F.3d 187, 193 (3d Cir. 2006); United States v. Dyer, 325 F.3d 464, 470-71 (3d Cir. 2001).
However, we need not finally resolve the appropriate standard of review, as we would
reach the same result even if the issue had been properly preserved.

                                               6
this provision to apply the Guidelines as they did before Booker, determining the

recommended range pursuant thereto. Cooper, 437 F.3d at 329-32.

          One essential component of the Guidelines is the departure procedure. See, e.g.,

King, 454 F.3d at 194-97. The Guidelines recognize a number of grounds on which a

district court may depart, upward or downward, from the otherwise applicable range. See,

e.g., U.S. Sentencing Guidelines Manual § 5K2.0. These provisions, no less than those

relating to offense level and criminal history category, are indispensable to calculating the

“sentencing range . . . as set forth in the [G]uidelines” for purposes of 18 U.S.C.

§ 3553(a). See King, 454 F.3d at 194-97. District courts are under the same obligation

post-Booker as they were pre-Booker with respect to ruling upon requests for departures.2

See id.

          We can thus rely on pre-Booker caselaw to resolve the issue in this case: whether

the District Court was required to state explicitly that it had considered and was denying

the motion for downward departure. Most relevant to this inquiry is our opinion in

United States v. Georgiadis, 933 F.2d 1219 (3d Cir. 1991). The question there, as in this

case, was whether a district court must expressly consider and resolve a pending motion




          2
        Of course, this does not mean that a violation of the standards governing
departure motions will always result in reversal. See King, 454 F.3d at 194-97 (declining
to presume that defendant was prejudiced by district court’s failure to apply departure
framework); United States v. Schweitzer, 454 F.3d 197, 205 (3d Cir. 2006) (concluding
that any error in district court’s disposition of departure motion “is properly deemed
harmless”).

                                               7
for downward departure prior to imposing sentence. An explanation of the district court’s

rationale is important because we lack jurisdiction to review a refusal to depart if based

on discretionary considerations, as opposed to legal interpretation. See id. at 1222 (“If we

determine the district court was aware of its authority to depart from the Guidelines, and

chose not to, we are without power to inquire further into the merits of its refusal to grant

[the] request [for downward departure].”).

       We declined to impose such a requirement. Id. at 1222-23. An express ruling on a

motion for downward departure is unnecessary, we held, if the record as a whole

demonstrates that the district court considered the relevant discretionary factors and

declined to alter the otherwise applicable sentencing range. Id. This showing, if made,

would confirm that the district court understood its authority to depart but refused to do

so as a matter of discretion, thereby precluding appellate review. Id.3

       The record in this case satisfies this standard. Samuelsen’s motion for downward

departure was premised on two grounds: extraordinary post-offense rehabilitation and

extraordinary acceptance of responsibility. Both of these could arguably serve as a basis




       3
        Cf. United States v. Mummert, 34 F.3d 201, 205-06 (3d Cir. 1994) (“[W]here the
record does not make clear whether the district court’s denial of departure was based on
legal or discretionary grounds, . . . the appropriate course of action is to vacate the
sentence and remand for the district court to clarify the basis for its ruling.”) (citing
Georgiadis, 933 F.2d at 1222-23).

                                              8
for departure,4 and the District Court was obliged to consider them. See King, 454 F.3d at

194-97.

       But, contrary to Samuelsen’s claim, the record demonstrates that the District Court

honored this obligation. It accepted psychological reports and testimony relating to

Samuelsen’s mental state, his feelings of remorse, and his efforts at restitution. It heard

the arguments of counsel, which focused substantially on Samuelsen’s rehabilitation and

acceptance of responsibility. And, most importantly, the District Court expressly referred

to this testimony and these arguments during the imposition of sentence and noted, in the

judgment, that “the court finds no reason to depart.” The District Court recognized the

potential grounds for departure, and plainly understood its authority to alter the otherwise

applicable range, but it simply declined to do so.5 This decision was a discretionary one,

which we cannot review. See Georgiadis, 933 F.2d at 1222.

       4
        See United States v. Sally, 116 F.3d 76, 79 (3d Cir. 1997) (“[P]ost-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.”); United States v. Lieberman, 971 F.2d
989, 996 (3d Cir. 1992) (“[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.”). But see United States v. Severino, 454
F.3d 206, 210 n.2 (3d Cir. 2006) (questioning validity of Lieberman in light of recent
amendments to the Guidelines).
       5
        Perhaps tellingly, Samuelsen does not argue that the District Court failed to give
full consideration to the factors under 18 U.S.C. § 3553(a), cf. Severino, 454 F.3d at 211
(holding that district courts may consider “extraordinary acceptance of responsibility” in
weighing statutory factors), or that his final sentence is “unreasonable,” see Cooper, 437
F.3d at 327-28 (holding that we have jurisdiction to entertain such claims).

                                              9
       That the District Court did not phrase its ruling in the parlance of “departure” is

hardly surprising, given the unsettled nature of sentencing law in September 2005. The

relevance of departures under the Guidelines was still an open question at that time, with

at least one appellate court even suggesting that, after Booker, these motions need not be

ruled upon. See, e.g., United States v. Johnson, 427 F.3d 423, 426 (7th Cir. 2005) (stating

that “[the concept of] ‘departures’ has been rendered obsolete by . . . Booker”). We have

only recently rejected this position, and clarified that departures under the Guidelines

remain an important cog in the sentencing mechanism, to be distinguished from

“variances” from the recommended range based on the factors under 18 U.S.C. § 3553(a).

See United States v. Severino, 454 F.3d 206, 210-11 (3d Cir. 2006); King, 454 F.3d at

194-97; Cooper, 437 F.3d at 332-33; see also United States v. Vampire Nation, 451 F.3d

189, 195 & n.2 (3d Cir. 2006) (adopting “variance” and “departure” terminology).

       We cannot criticize the District Court for failing to draw this distinction when we

had not yet done so. Indeed, it would be contrary to Georgiadis and many subsequent

cases to require that the District Court use particular language in denying a motion to

depart. See, e.g., King, 454 F.3d at 194-97 (affirming sentence despite district court’s

failure to adhere to departure standards because district court “did in fact touch all the

bases required”). The only obligation that we will impose, to allow us to assess our own

jurisdiction over the claim, is to require that the record as a whole demonstrate that the

district court considered the relevant discretionary factors and refused to alter the



                                              10
applicable sentencing range. See Georgiadis, 933 F.2d at 1222-23. The record in this

case does so, and we thus lack jurisdiction to consider the District Court’s decision.

                                             III.

       District courts would be well advised to consider motions for departure

independently from their assessment of the factors under 18 U.S.C. § 3553(a), and to state

explicitly on the record the reasons for granting or denying the motion. But a failure to

do so, while it may result in unnecessary appeals and waste of judicial resources, will not

necessarily require remand. So long as the record reasonably demonstrates that the

district court considered the discretionary factors relevant to departure – as does the

record in this case – we may dismiss the appeal for lack of jurisdiction without remanding

for further clarification.

       For these reasons, the appeal will be dismissed.




                                             11
