                                                         [PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT


                              No. 95-4073


                 D. C. Docket No. 94-249-CR-WDF



UNITED STATES OF AMERICA,


                                               Plaintiff-Appellant,

                            versus


YAHAIRA ONOFRE-SEGARRA,


                                                Defendant-Appellee.


          Appeal from the United States District Court
               for the Southern District of Florida

                          (October 24, 1997)



Before TJOFLAT and COX, Circuit Judges, and HANCOCK*, Senior
District Judge.




___________________________________________

*Honorable James H. Hancock, Senior U.S. District Judge for the
Northern District of Alabama, sitting by designation.
TJOFLAT, Circuit Judge:

     The United States appeals the sentence of Yahaira Onofre-

Segarra on the ground that the district court abused its

discretion when it granted Onofre-Segarra's motion for a downward

departure under section 5K2.0 of the Sentencing Guidelines.1

Because we find that the district court made insufficient factual

findings to support its decision to depart, we vacate the

sentence and remand the case to the district court for a full

hearing on the propriety of a downward departure under section

5K2.0.

     As this court explained in United States v. Scroggins, 880
F.2d 1204, 1209 (11th Cir. 1989), "[g]uideline sentencing is an

adversarial process.   It envisions a confrontation between the

parties similar to that which occurs at a civil bench trial."

The district court hears arguments and receives evidence on

disputed legal and factual issues and then "resolves these




     1
          Section 5K2.0 states, in part:

     Under 18 U.S.C. § 3553(b) the sentencing court may impose a
     sentence outside the range established by the applicable
     guideline, if the court finds “that there exists an
     aggravating or mitigating circumstance of a kind, or to a
     degree, not adequately taken into consideration by the
     Sentencing Commission in formulating the guidelines that
     should result in a sentence different from that described.”

United States Sentencing Commission, Guidelines Manual, § 5K2.0
(Nov. 1, 1994). The 1994 guidelines apply to Onofre-Segarra
because they were the guidelines in force at the time of her
sentencing. See United States v. Wilson, 993 F.2d 214, 216 (11th
Cir. 1993).

                                 2
disputes by making findings of fact and conclusions of law."       Id.

at 1209 n.11 (emphasis added).2

     Appellee Onofre-Segarra entered into a plea agreement

whereby she pled guilty to one count of importing heroin, in

violation of 21 U.S.C. § 952(a) (1981 & Supp. 1997).   The main

issue presented at her December 9, 1994 sentencing hearing was

whether Onofre-Segarra should receive a downward departure under

section 5K2.0 because her conduct qualified as "aberrant

behavior," as that term has come to be understood by the courts.

See, e.g., United States v. Withrow, 85 F.3d 527 (11th Cir.
1996)(holding that district courts may make downward departures

"after making a careful factual determination that the

defendant's conduct constituted a single, aberrant act").    The

United States opposed the motion by Onofre-Segarra for a downward

departure under section 5K2.0.    Over the Government's objection

and the recommendation of the presentence investigation report,3

however, the district court granted the departure, sentencing

     2
          Prior to the sentencing hearing, a presentence
investigation report is prepared by the district court's
probation service. The report provides a summary of the facts in
the case and gives a preliminary estimate of the appropriate
sentence under the guidelines. The parties have the opportunity
to object to portions of the report, and the probation officer
determines whether or not to amend the report in response to
those objections. Any issues remaining in dispute are summarized
in the report and then contested in the sentencing hearing
itself. See Scroggins, 880 F.2d at 1209 n.11.
     3
          Refuting the argument of Onofre-Segarra's counsel that
the appellee was immature and used bad judgment, the probation
officer who prepared the presentence investigation report wrote,
"[u]nfortunately, the decision to illegally import heroin into
the United States is a sign of a lack of responsibility and bad
judgment, no matter how old, or young, a person may be."

                                  3
Onofre-Segarra to 33 months rather than to a term within the

guideline range of 70-87 months.4

     Departures under section 5K2.0 are "reserved for 'unusual'

cases where there is something atypical about the defendant or

the circumstances surrounding the commission of the crime which

significantly differ from the normal or 'heartland' conduct in

the commission of the crime."   United States v. Gonzalez-Lopez,

911 F.2d 542, 549 (11th Cir. 1990).   When a district court finds

that a downward departure is merited, therefore, it must

"articulate the specific mitigating circumstances upon which it
relies and the reasons these circumstances are of a kind, or to a

degree, not adequately taken into consideration by the Sentencing

Commission."   United States v. Baker, 19 F.3d 605, 616 (11th Cir.

1994)(emphasis added).5

     As the party seeking the adjustment to the sentence, Onofre-

Segarra had the burden of proving, by a preponderance of the


     4
          We note that the issue of whether Onofre-Segarra
qualified for a two point reduction for being a "minor
participant" in the crime, in accordance with section 3B1.2(b) of
the Sentencing Guidelines Manual (1994), was also before the
district court. Although no evidence was proffered by Onofre-
Segarra sufficient to determine the extent of her role in the
crime, the district court granted the adjustment. Cf. United
States v. Gates, 967 F.2d 497, 501 (11th Cir. 1992)(stating that
defendant bears the burden of establishing that he qualifies for
a downward adjustment on the grounds that he was a minor
participant). Because the government did not object to the
district court's ruling, however, the issue is not before this
court and the two-point reduction will stand.
     5
          Baker was decided by this court before Onofre-Segarra's
sentencing hearing and served notice to the district court that
downward departures require the articulation of the specific
circumstances warranting the departure.

                                 4
evidence, that she was entitled to the departure.    See United

States v. Wilson, 884 F.2d 1355, 1356 (11th Cir. 1989)("The

guidelines contemplate that the government has the burden of

proving the applicability of sections which would enhance the

offense level and the defendant has the burden of proving the

applicability of guideline sections which would reduce the

offense level."); United States v. Miller, 78 F.3d 507, 511-12

(11th Cir. 1996)(applying Wilson's logic to a downward departure

case).   Although the district court found that Onofre-Segarra

qualified for a downward departure under section 5K2.0, its

decision could not have been based on the evidence presented at

the sentencing hearing because Onofre-Segarra presented

absolutely no evidence.   Nor could the district court have based

its decision upon evidence adduced at trial, because Onofre-

Segarra entered into the plea agreement with the United States

prior to trial.   Cf. United States v. Hansley, 54 F.3d 709, 714
(11th Cir. 1995)(sentencing judge may utilize evidence adduced at

trial in determining appropriate sentence under the guidelines).

In fact, the only information upon which the district court could

have based its decision was the unsubstantiated arguments of

Onofre-Segarra's counsel and the sparse background information

contained in the presentence investigation report.

     In sentencing a defendant under the guidelines, a district

court may consider all relevant information, regardless of its

admissibility under the rules of evidence.   See United States v.
Lawrence, 47 F.3d 1559, 1567 (11th Cir. 1995)("[T]he Guidelines


                                 5
allow a district court to 'consider relevant information without

regard to its admissibility under the rules of evidence

applicable at trial, provided that the information has sufficient

indicia of reliability to support its probable accuracy.'"

(quoting U.S.S.G. § 6A1.3(a)(Nov 1, 1994))).   The arguments of

counsel and the challenged conclusions of the presentence

investigation report, however, are generally an insufficient

basis upon which to depart from the guidelines.   See United

States v. Wilson, 884 F.2d 1355, 1356 (11th Cir. 1989)("At the

sentencing hearing defendant's counsel argued that defendant's

plea negotiations demonstrated acceptance of responsibility but
offered no evidence that would establish his qualification for a

reduction under this section." (emphasis added)).6

     The paucity of evidence available to the district court is

reflected in its "findings of fact."   In contrast to the

"specific mitigating circumstances" mandated by Baker, the vague

statements of the court were either unsupported by any evidence

or irrelevant.    The district court stated that it "consider[ed]

the time span between the date [Onofre-Segarra] first sought the

passport to travel and actually participating in this act.     Her

age, other factors in the PSI that suggest that she might have

been gullible."   In addition, the court seemed to take notice of



     6
          This is particularly true where, as here, the
presentence investigation report recommended that the motion to
depart from the guidelines be denied, and no evidence was
presented by the party moving for the departure to contradict
that conclusion.

                                  6
the fact that Onofre-Segarra's education ended at the tenth

grade.

     First, the time span between Onofre-Segarra's application

for, and subsequent receipt of, her United States passport, and

her trip to Colombia to retrieve illegal drugs, was not

demonstrated to the court.   The only support for this claim was

the argument of Onofre-Segarra's counsel.   Second, Onofre-

Segarra's age at the time of the crime, nineteen, is neither

remarkable for this type of crime, nor relevant.   See U.S.S.G. §

5H1.1 (Nov. 1, 1994)("Age (including youth) is not ordinarily

relevant in determining whether a sentence should be outside the

guideline range”).   Onofre-Segarra's educational background,

although regrettable, is similarly unremarkable.   Finally, the

district court's blanket reference to "other factors in the PSI

that suggest that she might have been gullible" neither satisfies

the specificity required by Baker nor demonstrates that Onofre-
Segarra merited a downward departure.7   "Gullibility" is not a

ground for departure.8

     7
          The district court may have also considered Onofre-
Segarra's living conditions, alleged to be less than ideal and a
motivating factor for the crime, as well as the subversive
influence of "Jose Albert." No proof, however, was presented to
the court to substantiate the bald assertions of Onofre-Segarra's
counsel. The presentence investigation report was similarly
silent on these matters.
     8
          Had the district court made specific findings of fact,
it still would have been required to present its reasoning for
why the guidelines did not sufficiently account for those
circumstances. See Baker, 19 F.3d at 616. The district court
suggested that it was departing for the reasons stated in
Andruska, a case decided by the Seventh Circuit. See United
States v. Andruska, 964 F.2d 640 (7th Cir. 1992). The case was

                                 7
     The record indicates that the district court was generally

dissatisfied with the sentence mandated by the guidelines for

crimes such as Onofre-Segarra's.       The district court stated, "I

guess the word is out that when I get these kinds of cases;

especially with people with this age; no prior history, a ten

year sentence does not sit well with me; what am I going to do."

A court may not depart from the sentencing guidelines, however,

merely because it believes that the sentence mandated is

excessive.    United States v. Godfrey, 22 F.3d 1048, 1058 (11th

Cir. 1994).   Absent sufficient evidence for the district court to

make findings of fact and conclusions of law demonstrating just

cause for a departure, the district court is bound to impose a

sentence within the guidelines, whether the guideline sentence


proffered by Onofre-Segarra's counsel as support for its
proposition that "spontaneity" and "thoughtlessness" were key to
a court's finding of aberrant behavior, and that Onofre-Segarra's
behavior met that test. Cf. Withrow, 85 F.3d at 531 (holding
that defendant's behavior was not thoughtless or spontaneous
where defendant had the time to consider his actions while
driving around a parking lot looking for a car to steal, despite
the fact that the act was inconsistent with his life taken as a
whole). Ironically, the Seventh Circuit in Andruska actually
vacated a sentence where the district court erroneously departed
downward from the guidelines. See Andruska, 964 F.2d at 644-46.
In language equally appropriate here, the court wrote:

     We cannot countenance a procedure by which judges,
     dissatisfied with the stricture of the Guidelines in a given
     case (perhaps, at times, justifiably so), can fashion
     sentences they deem more appropriate through an overly
     expansive interpretation of "aberrant behavior." Whatever
     one's view of the sentencing consistency achieved by the
     guidelines[,] the guidelines seek to end disparity, and that
     goal would be undermined if the presumptive ranges could too
     easily be circumvented.

Id. at 646 (citations omitted).

                                   8
sits well with it or not.   By ignoring both the guidelines and

this court's precedent, and thus failing to conduct an adequate

sentencing hearing, the district court did nothing but impose

additional costs on the judicial system and uncertainty on

Onofre-Segarra.

     For the reasons stated above, we VACATE the sentence of the

district court and REMAND the case for a new sentencing hearing.

At the sentencing hearing, if Onofre-Segarra presents evidence in

support of a downward departure under section 5K2.0 and the

district court finds that a departure is warranted, the court

shall then make explicit findings of fact with regard to the

circumstances meriting the departure, state whether departure

under such circumstances is consistent with the guideline's

goals, and, finally, justify the extent of the departure.

     SO ORDERED.




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