                                                                                                                           Opinions of the United
2001 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-26-2001

United States v. Yeaman
Precedential or Non-Precedential:

Docket 00-1498




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"United States v. Yeaman" (2001). 2001 Decisions. Paper 92.
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Filed April 26, 2001

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

NOS. 00-1498 and 00-1500

UNITED STATES OF AMERICA
Appellant in Nos. 00-1498 and 00-1500

v.

DAVID REX YEAMAN, Appellee in No. 00-1498
NOLAN LEIGH MENDENHALL, Appellee in No. 00-1500

On Appeal From the United States District Court
For the Eastern District of Pennsylvania
(D.C. Crim. Action Nos. 96-cr-00051-3 and 96-cr-00051-6)
District Judge: Honorable Clarence C. Newcomer

Argued December 14, 2000

BEFORE: NYGAARD and STAPLETON, Circuit Judges, and
DEBEVOISE,* District Judge

(Opinion Filed: April 26, 2001)

Robert A. Zauzmer
Andrea G. Foulkes (Argued)
Office of the U.S. Attorney
615 Chestnut Street
Philadelphia, PA 19106
 Attorneys for Appellant



_________________________________________________________________
* Honorable Dickinson R. Debevoise, United States District Judge for the
District of New Jersey, sitting by designation.
       Frank C. Razzano (Argued)
       Dickstein, Shapiro, Morin &
        Oshinsky
       2101 L Street, N.W.
       Washington, DC 20037
        Attorney for Appellee
       David Rex Yeaman

       Patrick J. Egan (Argued)
       Donohue and Donohue
       232 South Fourth Street
       Philadelphia, PA 19106
        Attorney for Appellee
       Nolan Leigh Mendenhall

OPINION OF THE COURT

STAPLETON, Circuit Judge:

The United States government appeals the sentences of
David Yeaman and Nolan Mendenhall on several counts of
mail and wire fraud. We reversed the original sentences of
both defendants following a previous gover nment appeal,
finding that the District Court had failed to apply the
Sentencing Guidelines properly. United States v. Yeaman,
194 F.3d 442, 465 (3d Cir. 1999). At r esentencing, the
District Court departed downward 17 levels for Yeaman and
16 levels for Mendenhall primarily because both defendants
had already completed erroneously lenient sentences. The
downward departures granted by the District Court
resulted in no additional incarceration. W e conclude that
the District Court has again erred, and we will again
remand for resentencing.

I.

David Yeaman and Nolan Mendenhall wer e convicted on
several counts of mail and wire fraud arising from their
participation in a fraudulent scheme involving the sale of
worthless reinsurance. The details of the scheme are set
forth in our opinion in United States v. Y eaman, 194 F.3d
442, 446-49 (3d Cir. 1999). Briefly stated, the convictions of

                                  2
Yeaman and Mendenhall stemmed from their leasing
worthless stocks as assets available to pay insurance
claims. When these assets were called upon to pay
outstanding medical reinsurance claims, the scheme was
uncovered. David Yeaman leased stocks which were
purported to be valued at over $12 million but wer e in fact
practically worthless. Mendenhall assisted Y eaman in
leasing these falsely-valued stocks and ran the day-to-day
operations of the scheme. Id.

Yeaman was convicted by a jury in 1997 of conspiracy to
commit securities fraud and wire fraud, in violation of 18
U.S.C. S 371, five counts of wire fraud, in violation of 18
U.S.C. S 1343, and three counts of securities fraud, in
violation of 15 U.S.C. S 77q(a). Mendenhall was convicted of
four counts of securities fraud, in violation of 15 U.S.C.
S 77q(a). Three co-defendants wer e also convicted at trial,
while a sixth co-defendant pled guilty and testified against
the other defendants.

At its first sentencing hearing on January 28, 1998, the
District Court sentenced Yeaman to 14 months
imprisonment and Mendenhall to three years pr obation,
with Mendenhall's first 10 months to be served in
community confinement. The defendants appealed these
sentences and the government cross-appealed. On appeal,
this Court remanded for resentencing, holding, inter alia,
that the District Court had erred by finding that no loss
had occurred. On remand, Yeaman and the government
agreed to a modified offense level of 30, based on the $4.5
million loss incurred and other factors. This produced a
sentencing range of 97 to 121 months for Yeaman, a range
mandating a sentence 83 months (roughly 7 years) longer
than his prior sentence. Mendenhall and the gover nment
agreed to an offense level of 26, also based on the loss and
other factors. This produced a sentence range of 63 to 78
months, in comparison to a previous sentence r equiring no
jail time, but only community confinement.

At the resentencing hearing on April 10, 2000, the
District Court found that these ranges were appropriate
and that they were supported by the facts. The District
Court then departed downward 17 levels for Y eaman and
16 levels for Mendenhall in order to re-impose its original

                               3
sentences. Before either party had addr essed the merits,
the District Court made clear its intention to avoid
imposing any punishment beyond the original sentences.

       Let me say at the outset that this is an unusual
       situation in that we have two defendants her e who had
       been sentenced previously and who were each
       sentenced to periods of incarceration which they
       entered upon and completed and served and then
       entered upon their supervised release and their
       resumption of their civilian pursuits.

        . . .

       I must say, in all candor, that my view of this is that,
       as a judge, if he were in a position of applying justice
       and mercy, as it's traditionally been known, would feel
       that after this long delay, it is almost unconscionable
       to send these two defendants back to prison.

(App. 162a-66a).

After hearing arguments by the government and both
defendants, the District Court re-imposed its original
sentences.

II.

The parties have suggested four bases for the District
Court's downward departures: extraor dinary rehabilitation,
disparity in sentencing among similarly situated co-
defendants, extraordinary family circumstances, and re-
incarceration after completion of a sentence. The
government argues that on the facts of this case, a
departure based on any of the above factors is
unwarranted.

"We review a district court's decision to depart from the
applicable Guidelines range under an abuse of discr etion
standard . . .." United States v. Sweeting, 213 F.3d 95, 100
(3d Cir. 2000), citing Koon v. United States, 518 U.S. 81, 98
(1996). "Our review is limited to ensuring that the
circumstances relied upon by the District Court are not `so
far removed from those found exceptional in existing case
law that the sentencing court may be said to be acting

                               4
outside permissible limits.' " United States v. Serafini, 233
F.3d 758, 772 (3d Cir. 2000) quoting Sweeting, 213 F.3d at
100.

However, we also note that "whether a factor is a
permissible basis for departure under any circumstances is
a question of law, and the court of appeals need not defer
to the district court's resolution of the point." Koon, 518
U.S. at 100. Thus, while we owe deference to the District
Court's interpretation of the facts warranting departure in
this case, we may correct the District Court's legal error if
we find that it has departed based on a factor which would
not warrant departure under any circumstances.

1. Extraordinary Rehabilitation

In United States v. Sally, 116 F.3d 76 (3d Cir. 1997), we
held 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." Id. at 80.
(Emphasis is original). These rehabilitation ef forts must be
remarkable, "indicate real, positive behavioral change," and
demonstrate the defendant's "commitment to r epair and
rebuild" his or her life. Id. at 81; see also United States v.
Hancock, 95 F. Supp. 2d 280, 287 (E.D. Pa. 2000)
(declining to grant a Sally departur e based on defendant's
post-offense work record, wher e defendant was a college
graduate and held noteworthy employment prior to arr est);
United States v. Kane, 88 F. Supp. 2d 408, 409 (E.D. Pa.
2000) (noting it is inappropriate to grant a departure where
the defendant simply engages in good conduct consistent
with pre-offense activities).

Though the District Court did not explicitly state it was
departing downward on the basis of extraor dinary
rehabilitation, it is clear that the court was aware that
extraordinary rehabilitation was an available basis for
departure pursuant to our decision in Sally . The District
Court did state that "the record of both individuals while in
custody was exemplary and reflected a concentrated
attitude of rehabilitation and cooperation" and that

                                  5
"additional imprisonment would result in disruption of their
rehabilitative efforts."

The government notes that the most recent version of the
Sentencing Guidelines has been amended to forbid
expressly downward departures based on post-sentencing
rehabilitation. The Sentencing Commission deter mined that
such departures were inconsistent with 18 U.S.C. S 3624(b)
(providing for sentence reductions due to good behavior)
and impermissibly benefitted only those who were granted
resentencing de novo. U.S.S.G. S 5K2.19. We note that the
amended guidelines were not effective at the time of the
sentencing of these defendants and that they work a
departure from our previous interpr etation of U.S.S.G.
S 5K2.19 in Sally. They are ther efore a substantive
amendment, rather than a clarification of U.S.S.G.
S 5K2.19. See U.S. v. Bertoli, 40 F .3d 1384, 1407 n.21 (3d.
Cir. 1994) (stating that this Court's interpr etation of the
pre-amendment language is the controlling factor in
determining whether an amendment is mer ely "clarifying.").
We, therefore, conclude that a Sally departure is available,
at least in theory, to these defendants.

It is clear from the record befor e us, however, that the
defendants here are not eligible for a Sally departure.
Neither Yeaman or Mendenhall has intr oduced evidence of
extraordinary rehabilitation. Mendenhall's three proffered
examples of rehabilitation are not significant. First,
Mendenhall's parole officer stated that his behavior was
"likely aberrant and not likely to be repeated." Second,
Mendenhall points out that he is attempting to become an
architect. Third, after being released from community
confinement, Mendenhall sought counseling fr om a police
lieutenant.

The statement of the parole officer har dly amounts to
evidence of extraordinary rehabilitation, and Mendenhall's
career change is not at all surprising, as he has a Master's
Degree in architecture and would pr esumably have faced
difficulty obtaining employment in the securities industry
subsequent to his conviction. The only evidence that speaks
to rehabilitation at all is Mendenhall's pursuit of
counseling. Pursuit of counseling is included as a factor
weighing toward proof of acceptance of r esponsibility under

                                6
U.S.S.G. S 3E1.1. The fact that it is a factor weighing in
favor of a guideline-based departure makes it clear that
standing alone, it is not "extraordinary" unless there is
some evidence that it was somehow present to an
extraordinary degree in this case. No such evidence is
present in the record. Accordingly, we can find no basis in
the record supporting a Sally departure for Mendenhall as
he has pointed to nothing "remarkable" or"exceptional" in
his rehabilitation as is required by our jurisprudence.

Turning to Yeaman, the recor d makes clear that he
learned Spanish, participated in the prison choir, tutored
other inmates, and generally behaved as a "model prisoner."
As a reward for this good behavior , Yeaman was released
early from his confinement at Nellis Prison Federal Prison
Camp and transferred to community confinement to serve
the last few months of his original sentence. While
Yeaman's activities, especially the tutoring of fellow
inmates, were commendable, they do not support a finding
of extraordinary rehabilitation. Befor e his original
sentencing, Mr. Yeaman made clear that he is an individual
with strong religious convictions who would not be inclined
to engage in unlawful activity in the future. 1 Yeaman's
_________________________________________________________________

1. Relatedly, we note the following statement by the District Court:

        Since [defendants'] release they have, by all accounts, been model,
        productive citizens, resulting in numer ous letters of support from
        relatives, friends, employers and community members. Any
        additional imprisonment would result in disruption of their
        rehabilitative efforts, their relationships with family members,
which
        have been strained and are now being str engthened, and would
        cause substantial economic hardship on the defendants and their
        families.

         The letters mentioned were made part of the appendix,
        presumably in support of Yeaman's claim of extraordinary
        rehabilitation. The majority of these letters simply indicate that
        Yeaman's family and community believe he is a good person and
        believe he has been punished sufficiently. Such sentiments, though
        attesting to Yeaman's many admirable qualities, do not form an
        adequate basis for downward departure under the Sentencing
        Guidelines. Accord U.S.S.G. S 5H1.6 (stating that community ties
are
        ordinarily irrelevant to sentencing); United States v. Rybicki, 96
F.3d
       754, 758 (4th Cir. 1996) (finding that personal worthiness does not
       constitute a valid basis for downward departur e); cf. United
States v.
       Serafini, 233 F.3d at 763 (exceptional civic and charitable
contributions may form a basis for departur e).

                        7
behavior subsequent to sentencing confirms this fact but
also makes it clear that Yeaman's conduct has not changed
significantly and could have been reasonably expected
based on his previous behavior. Insofar as the District
Court concluded that extraordinary rehabilitation occurred
in Yeaman's case, it abused its discr etion. There is nothing
about Yeaman's post-sentencing conduct that sets it
outside the heartland and makes it a basis for a Sally
departure.2

2. Sentencing Disparity

The District Court stated that "imposing what is
concededly a substantial downward departur e . . . would
tend to make the sentences more compatible with the
defendant's other cohorts in this scheme for which the
defendants have been found guilty, and would mor e fairly
level the playing field." The defendants suggest that the
District Court departed downward on the basis of
sentencing disparity.

We are not certain that the defendants have read the
District Court's statement correctly. It is possible that the
District Court was merely observing an ef fect of its
downward departure rather than providing an additional
basis for the departure. If it were true that this were a basis
for departure, however, we would not be able to sustain
such a basis on these facts. The record makes it clear that
two of the defendant's cohorts received sentences more
severe than those properly applicable to Y eaman and
Mendenhall.3 Additionally, the government makes a
_________________________________________________________________

2. Yeaman's counsel argues that United States v. Green, 152 F.3d 1202
(9th Cir. 1998) is nearly on all fours supporting a downward departure.
Green involved a 14-level downwar d departure for a person convicted of
a marijuana-related offense in Califor nia, who served 3000 hours of
community service, and in addition made himself"available for daily
tutoring, weekend special events, out therapy pr ogram, and was
instrumental in starting Saturday computer training programs." Id. at
1208. This kind of involvement might be seen as extraordinary and is
distinguishable from Yeaman's conduct, which does not demonstrate
extraordinary initiative or change in behavior.

3. Alan Teale pled guilty and was sentenced to seven years in
Pennsylvania, and then ten years consecutively in Alabama. He died in
prison. Charlotte Rentz pled guilty and was sentenced to six years in
Pennsylvania and an additional seven years in Alabama.

                               8
compelling argument that the variation in sentences
between the defendants here and their co-defendants may
be explained by the fact that all co-defendants pr esented by
the defendants pled guilty and many of them cooperated
with the government's investigation and pr osecution.
Generally, disparities in sentences among similarly situated
defendants do not constitute a valid basis for downward
departure in the absence of any proof of prosecutorial
misconduct. United States v. Higgins, 967 F .2d 841, 845
(3d Cir. 1992). In fact, several other cir cuits have rejected
challenges to shorter sentences for similarly situated co-
defendants when the shorter sentences were a r esult of
plea bargaining or government assistance. See, e.g., United
States v. Epley, 52 F.3d 571, 584 (6th Cir. 1995); United
States v. Stanley, 928 F.2d 575, 582-83 (2d Cir. 1991).

We have held that a manipulation of an indictment by the
prosecution may provide a basis for a downward departure.
See United States v. Lieberman, 971 F .2d 989, 998-99 (3d
Cir. 1992). Although Yeaman and Mendenhall suggest many
inconsistencies between their sentences and the sentences
of their co-defendants, their arguments ar e based on an
ambiguous comment by the District Court that makes no
reference to specific facts. Lacking anyfindings of fact from
the District Court as to which co-defendants wer e similarly
situated and how the government committed pr osecutorial
misconduct, it is impossible for us to deter mine if and why
the District Court intended to depart downwar d on the
basis that some sentences were dissimilar . In the absence
of any factual findings of specific disparities or
prosecutorial misconduct, the departures challenged by the
government cannot be sustained on the basis of sentencing
disparity.

3. Family Circumstances

We note briefly that the District Court stated that
reincarceration would result in "disruption of . . .
[defendants'] relationships with family members, which
have been strained and are now being str engthened" and
"substantial economic hardship on . . .[defendants']
families." This suggests to us that family cir cumstances
may have constituted a basis for the District Court's
downward departure. Our opinion in United States v.

                               9
Sweeting, 213 F.3d 95 (3d Cir. 2000), recognizes this basis
for downward departure outside the Guidelines, but it also
forecloses the possibility of any such departur e on this
record. See id. at 102 (stating that family disruption is a
normal consequence of incarceration). In Sweeting, we
denied a downward departure on the basis of extraordinary
family circumstances to a single mother withfive children,
one of whom had a psychological impairment. See id. at 96-
98. The evidence of extraordinary family cir cumstances in
this case does not rise to the level that we found
inadequate in Sweeting. We will not discuss the issue
further, as Mendenhall does not urge this basis upon us
and Yeaman specifically argues that family circumstances
were not a basis the District Court's decision.

4. Re-Incarceration

       A. Validity of Downward Departur e on this Factor

This leaves re-incarceration as the only possible basis for
sustaining the District Court's downward departure.4
Sentencing took place on January 22, 1998 and
Mendenhall and Yeaman began to serve their sentences
within three months of that date. Resentencing took place
on April 10, 2000. At that time, Mendenhall had been
released from community confinement and had been living
with his family (on probation) for a period of roughly 16
months. Yeaman had served ten months in a federal prison
camp and a brief term of community confinement and had
been free for over a year. The District Court specifically
departed downward on the basis that Yeaman and
Mendenhall had served their original sentences, and that it
would be "cruel" to return the defendants to prison
following the completion of their original sentences.5
_________________________________________________________________

4. The defendants claim the government has waived any objection to
reincarceration as a basis for downwar d departure, because the
government, in several instances, acknowledged that the circumstances
of this case were unique or unusual. We have found multiple instances
in the record where the gover nment made clear that it is opposed any
downward departure in this situation. The government does not,
however, contest the theoretical possibility of a downward departures
based on reincarceration in some other factual situation.

5. Again we observe that Mendenhall was never incarcerated, but served
10 months in community confinement.

                               10
Yeaman's counsel argues that we "should affirm Mr.
Yeaman's sentence on [re-incar ceration] alone, and need
not address the other bases for departur e." Appellee's Br. at
31.

A court may depart from the guidelines sentence if "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 differ ent from that
described." U.S.S.G. S 5K2.0 (1997). Departures should be
"highly infrequent," Koon, 518 U.S. at 96; see also Serafini,
at *57 (Rosenn, J., dissenting in part and concurring in
part) ("Discretion, like the hole in a doughnut, does not
exist except as an area left open by a surr ounding belt of
restriction," citing Ronald Dworkin, T aking Rights Seriously
31 (1977)).

The Supreme Court has endorsed a four-step test for
determining whether a departure fr om the Guidelines
should occur based on unusual circumstances. See Koon,
518 U.S. at 95. First, we determine if the factor relied upon
in the case makes it special or unusual, taking it outside
the heartland. Second, we determine whether departures
on such factors have been forbidden by the Commission.
Third, we determine whether the Commission has
encouraged departures based on such factors. Fourth, we
determine whether the Commission has discouraged
departures based on such factors. Id.

We conclude that the claims of Yeaman and Mendenhall
stumble on the first step of Koon. The defendants here
present no unusual circumstances that move their
situation outside the heartland. The Sentencing Guidelines
promote two central Congressional objectives. First, they
promote a vertical sentencing uniformity by identifying an
appropriate sentencing range for any given crime in light of
the goals of sentencing. Second, they promote a horizontal
uniformity in sentencing by requiring that similarly
situated defendants are sentenced similarly. See U.S.S.G.
Ch. 1. Pt. A. P 3 (policy statement). Under the Guidelines
scheme, the calculated sentence is presumed to be the
standard sentence for typical cases within the"heartland."
As the lower end of the sentencing range cannot be bridged

                               11
without some basis for downward departur e, we can
conclude that it must identify the minimum sentence
required in the heartland case to satisfy the goals of general
deterrence, specific deterrence, r etribution, and
rehabilitation. See 18 U.S.C. S 3553(a) (setting forth the
goals of sentencing).

In a system administered by human beings, err ors are
inevitable.6 Errors under the Sentencing Guidelines result
in breaches of the intended uniformity, however, and error
correction is essential to attaining the twin goals of the
Guideline scheme. Accordingly, the Guidelines contemplate
the correction of errors through appellate review. See
U.S.S.G. Ch. 1 Pt. A. P 2; 18 U.S.C. S 3742(b)(2). The
correction of errors in sentencing necessarily involves
reincarceration in that class of cases where the sentence
imposed was less than it should have been and as a r esult,
the defendant has been released prior to the correction of
the error.

The District Court here held that reincar ceration in and
of itself constitutes an aggravating or mitigating factor not
adequately taken into account by the Guidelines scheme.
We can not agree. Rather, r eincarceration as a means to
correct error is inherent in the pr ocess of Guideline
sentencing. Indeed, as we have indicated, the corr ection of
error through reincarceration pr ovides the only means of
preserving the appropriateness and unifor mity of
sentencing.

Accepting the District Court's view that err or correction
through reincarceration places a case outside the heartland
would require us to endorse the pr oposition that the
original imposition of unduly lenient sentences can entitle
defendants in Yeaman's and Mendenhall's positions to
sentences that do not conform to the intended uniform
pattern. Such an endorsement would not only be
inequitable and inconsistent with Congressional intent, it
would also produce the greatest deviation from the desired
uniformity in those cases where the original errors are the
most egregious. Permitting a downwar d departure to avoid
_________________________________________________________________

6. See Alexander Pope, An Essay on Criticism, part ii, line 325 (1711)
("To
err is human . . ..").

                               12
reincarceration where an erroneously lenient sentence is
successfully appealed would have the perverse ef fect of
compounding judicial error. The mor e egregious the error of
a District Court at an original sentencing, the mor e likely
that error would become irreversible. If, for example, the
District Court in this case had misinterpreted the proper
guidelines sentence as requiring only four years
imprisonment for each defendant, no departur e would have
been available under the District Court's theory. Only when
the error is most egregious does this theory support
departure. We are especially hesitant to adopt a rule that
creates such dubious inversions.7

We hold only that error correction through
reincarceration cannot alone take a case outside the
heartland. We do not rule out the possibility that
_________________________________________________________________

7. In support of its view, the District Court made reference to this
Court's opinion in United States v. Romualdi, 101 F.3d 971 (3d Cir.
1996). In that case, we reversed an err oneous sentence of home
confinement that should have been a sentence of three years
incarceration. In the course of our opinion, we suggested that on remand
the District Court might consider whether a departur e would be
appropriate:

        [W]e note that Romualdi has apparently completed his service of the
        most stringent part of the sentence imposed by the district court,
        i.e. home confinement for six months. On r emand, the district
court
        may want to consider whether this is a factor that would warrant
        departure.

Id. at 977.

We read this language as suggesting that in the absence of any
compensation under the guidelines for time err oneously served in home
confinement, such confinement might possibly be credited to the
defendant through a downward departur e mechanism at resentencing.
See 18 U.S.C. S 3585 (b) (providing that a defendant shall be given credit
toward the service of a term for any time spent previously in federal
custody); Edwards v. United States, 41 F.3d 154 (3d Cir. 1994) (holding
that home confinement is not official detention for purposes of 18 U.S.C.
S 3585(b)).

Romauldi thus has no bearing on cases like the ones before us where
the defendants will receive full credit for the time they have served and
the sole issue is whether reincarceration for error correction can alone
move the defendant's case outside the heartland.

                                13
extraordinary circumstances surrounding reincarceration
or extraordinary effects of reincar ceration in a particular
case may provide a basis for departure just as the
circumstances and effects of an original incarceration, if
sufficiently extraordinary, can constitute a basis for a
downward departure. See United States v. Milikowsky, 65
F.3d 4,7 (2d Cir. 1995) (downwar d departure to avoid
incarceration warranted under "extraor dinary family
circumstances" exception); United States v. Lara, 905 F.2d
599, 605 (2d Cir. 1990) (downward departure for "extreme
vulnerability" during incarceration). Y eaman and
Mendenhall, however, present no extraor dinary
circumstances or effects of reincar ceration moving their
cases beyond the heartland.

Under the Guidelines a sentence for Yeaman of at least
eight years and one month and a sentence for Mendenhall
of at least five years and three months ar e deemed
necessary to serve the Congressionally declar ed objectives
of sentencing and the goal of uniform tr eatment of similarly
situated defendants. Any departure from those minima
must be justified by extraordinary cir cumstances placing
their cases beyond the heartland and must be consistent
with the objectives of the Guidelines. U.S. v. Gomez-Villa, 59
F.3d 1199 (11th Cir. 1995); U.S. v. Ullyses-Salazar, 28 F.3d
932 (9th Cir. 1994). We are unwilling to hold that the
original imposition of unduly lenient sentences and the
resulting necessity of reincarceration of the defendants
following correction of those sentences can justify the
fourteen month and ten month sentences here under
review.

III.

We will reverse the judgment of the District Court and
remand for resentencing in a manner consistent with this
opinion.

                               14
NYGAARD, J., dissenting in part:

I agree with my colleagues that the District Court erred
by relying upon the sentencing disparities between
appellants and their co-defendants as a basis for downward
departure. Further, I reluctantly agree that re-
incarceration, even where, as here, it is wholly unnecessary
and antithetical to the historical purposes of criminal law
and penology, in and of itself does not take this case out of
the heartland. However, in contrast to the Majority, I do not
think the District Court abused its discretion by departing
downward on the basis of extraordinary r ehabilitation.
Accordingly, I would affirm the District Court on this issue,
but remand the cause for it to determine if the departure is
reasonable on this basis alone.

With respect to Mendenhall, the Majority contends that
his three proffered examples of rehabilitation are not
significant. Maj. Op. at 6. It finds nothing extraordinary
about his conduct on parole, his career change, or his
participation in counseling. I disagree with the Majority's
characterization of Mendenhall's efforts and agree with the
District Court that, when considered together , they amount
to remarkable change. First, Mendenhall's work with
probation was far above average. His supervising parole
officer reported that during his supervised r elease,
Mendenhall "performed admirably.""Admirable" is not
synonymous with "average" or even "well." It connotes
something distinct and exceptional. The Majority overlooks
this highly complimentary statement altogether in
assessing the merits of Mendenhall's conduct while on
parole.

Mendenhall's parole officer also stated that"based on Mr.
Mendenhall's performance while on supervision, I would
venture to opine that his criminal conduct is likely aberrant
and is not likely to be repeated." The Majority fails to attach
much, if any significance to this statement. W ithout
explaining why, it quickly finds that "this statement hardly
amounts to evidence of extraordinary rehabilitation." Again,
I disagree.

Given the dismal statistics regarding r ecidivism, the
Parole Officer's observation and opinion indicates

                               15
something truly unique and remarkable. It demonstrates
that Mendenhall did not just comply with the r equirements
of his parole and avoid violations. Mor e importantly, he
displayed a sincere, genuine desire to change his life. This
conduct and earnestness, although the highest goal of
corrections, is unfortunately rare among convicted
offenders. Mendenhall left a marked impr ession on the
parole officer. I accept the District Court's finding that
Mendenhall's behavior was exceptional.

Next, I believe Mendenhall's pursuit of architecture
reflects a "real, positive change in behavior." A letter from
his current employer states that Mendenhall"accepts
responsibility and deadlines, has shown integrity, and has
a true desire to increase his professional skills and become
a fully licensed architect. His talent, moral ethic, and
people skills would make Nolan hard to r eplace."
Mendenhall did not begrudgingly change careers. Rather,
he approached his new job with a positive attitude and
worked hard to achieve success. This was not r equired by
the criminal justice delivery system. Mendenhall's success,
not only his work-product but also his workplace
relationships, reflects an inner desir e and a commitment to
move forward with his life and to do so in a moral, lawful
manner. His attitude indicates extraor dinary rehabilitative
efforts.

Finally, Mendenhall's participation in therapy exemplifies
the exceptional nature of his rehabilitation. For example,
Mendenhall initiated therapy sessions on his own, without
any prompting from the court. He did this because he
wanted to "improve his marriage, his ability to be a better
father, and to learn from his mistakes that he had made in
the past." Additionally, Mendenhall began therapy before he
knew that he faced resentencing, thus demonstrating his
sincerity. As his therapist stated, "[w]orking with forensic
populations on a frequent basis, I was impr essed that he
voluntarily came forth, willing to examine his past patterns
of behavior at a time in which there did not seem to be a
compelling need to impress a judge or other sentencing
authority." Moreover, Mendenhall did not merely show up
for therapy. He was an active participant, willing to work
through difficult issues and examine his conduct. In

                               16
essence, he recognized that he needed help, and took
responsibility for his actions. His therapist described him
as "genuinely motivated to become a more moral and
effective person and to forever avoid situations that have
historically proven to be high risk" and as someone who "is
concerned about morals and the implications of his
conduct."

Despite these accolades, the Majority summarily
concludes that there is no evidence to suggest that
counseling was "somehow present to an extraordinary
degree in this case." In my view, this minimizes
Mendenhall's participation and achievements in therapy
and fails to appreciate the important distinction between
openly engaging in therapy and merely showing up with old
attitudes intact. Many offenders do the latter in order to
meet a requirement; they "fake it to make it" without any
intention of looking inward and questioning their behavior.
Mendenhall did just the opposite. If his efforts were not
outside of, or beyond, the ordinary then I am not certain
what is. Accordingly, I conclude that Mendenhall's
voluntary participation in therapy, coupled with his
"admirable" conduct on parole and in his new job, amount
to extraordinary rehabilitation.

Similar to Mendenhall, I also think that Yeaman has
made "concrete gains toward tur ning his life around." The
Majority acknowledges that Yeaman's conduct was
commendable but nonetheless rejects a finding of
extraordinary rehabilitation. In my view, the Majority
overlooks the unique nature of Yeaman's accomplishments
and sets the threshold for extraordinary r ehabilitation too
high. First, Yeaman went "above and beyond" what was
required of him in prison. Aside fr om being a "model
prisoner" with no discipline record, Y eaman became actively
involved in the prison community and focused his energies
upon helping others. For example, he joined the prison
choir and completed Spanish, public speaking courses, and
other college courses. Moreover, he tutored inmates who
spoke only Spanish. Additionally, Yeaman consistently
received outstanding performance r eviews for his work as a
janitor. His reviews also reveal that Yeaman had a positive
attitude while incarcerated.

                               17
Yeaman's letters to family and friends r eflect his desire to
help others while incarcerated. For example, in one letter,
he explained:

       It has been exactly one month since I . . . pr esented
       myself for incarceration. It seems bizarr e to me that I'm
       a `prisoner.' Rather, I've adopted the philosophy that
       I'm a `volunteer.' I can leave really anytime I want to,
       yet I'm an inmate. Since I'm a volunteer, I then believe
       that I should do the best at whatever I'm supposed to
       be volunteering to do. Most of the inmates spend a lot
       of time hiding from the prison guards and doing the
       least amount of work possible. I believe that r egardless
       of the terms of my employment, I should do the best
       that I can.

J.A. at 365. In another letter, he stated:

       As it turns out this is a period of reflection; of
       redirecting one's life and contemplating one's future.
       From that standpoint, this experience has been good
       for me. And, to the extent that I am able to help others
       do the same, it is also good. So, the time is passing
       very quickly now and I am very involved in meeting
       people and participating in activities.

J.A. at 367.

Helping others in the prison setting is certainly not
mandatory. Indeed, active, positive involvement in the
prison community is rare. In United States v. Bradstreet,
207 F.3d 76 (1st Cir. 2000), the Court of Appeals for the
First Circuit recognized how uncommon it is for prison
inmates to focus their efforts on educating others. In that
case, the Court affirmed a downward departure for
extraordinary rehabilitation because, compared with other
inmates whose efforts were focused on self-improvement,
the defendant's efforts were substantially concerned with
others as well. See Bradstreet, 207 F .3d at 83. We have
never held that assisting and educating others may serve as
a basis for extraordinary rehabilitation. I would. I think
such conduct falls within the general definition of
extraordinary rehabilitation that we set forth in United
States v. Sally, 116 F.3d 76 (3d Cir . 1997). That is, it
reflects a "truly repentant defendant[ ]" who has a

                               18
"demonstrated commitment to repair and to r ebuild [his]
li[fe]." Sally, 116 F.3d at 80. Accordingly, I believe that
Yeaman's "volunteer" approach, i.e., his efforts to help
Spanish-speaking inmates learn English and his positive
presence and involvement in the prison community,
demonstrate remarkable strides toward changing his life.

Next, Yeaman's shift in attitude during his prison stay
also supports a finding of extraordinary r ehabilitation. In
letters to family and friends, Yeaman r ecognized his own
shortcomings and accepted responsibility for his actions.
Further, he expressed a desire to change his life. He stated:

       Shortly after I got here, I was told by most of the
       inmates various ways to get through the system with
       minimal work and not antagonizing the Prison staf f. I
       questioned myself about how I was going to feel about
       myself under such circumstances and decided that if
       nothing else, I wanted to come out of here with more
       integrity that I came in with. I wasn't going to let the
       system create a scenario where I compr omised my
       values to become like someone's expectations of me.

J.A. at 366.

Yeaman also began cooperating with the United States
Government for the first time. In the past, Yeaman "butted
heads with the United States Government, and .. . tested
the regulators in Washington and thr oughout the country
continually." J.A. at 171. However, after his conviction, he
accepted the government's authority. Along with his
conduct in prison, I think Yeaman's change in attitude also
supports a finding of rehabilitation.

The Majority believes that Yeaman's attitude and
behavior did not significantly improve. It r easons that
Yeaman is a man of strong religious convictions and thus
his attitudes and behaviors during his incar ceration and
supervised release could be reasonably expected. I disagree.1
_________________________________________________________________

1. The Majority's reasoning suggests that, as a defendant's level of
insight, capability, and skill prior to conviction increase, his chances
of
achieving post-conviction "extraordinary r ehabilitation" decrease,
because rehabilitative efforts ar e "expected" from such a defendant.

                               19
Although Yeaman professed strong r eligious beliefs before
his conviction and incarceration, he did not apply them in
his own life. He committed a serious crime involving fraud
and deceit. However, while in prison and after his release,
Yeaman demonstrated a genuine commitment to moral
principles and values. He is living his life dif ferently than
he did before his incarceration. He has not violated the
terms of his supervised release and is now successfully
managing a cattle ranch. This sort of notable change
should not be underestimated. In this case, it indicates an
extraordinary effort at rehabilitation.

Finally, it should be noted that a sentencing court has
broad discretion in determining whether to grant a
downward departure, because it alone has the full flavor of
the trial or plea, and all prior proceedings. Thus, it can
gauge the full effect of its sentences upon of fender and
victim alike. As the Supreme Court stated:"A district
court's decision to depart from the Guidelines . . . will in
most cases be due to substantial deference, for it embodies
the traditional exercise of discretion by a sentencing court."
Koon v. United States, 518 U.S. 81, 98, 116 S.Ct. 2035,
2046 (1996). Applying this deferential standar d to the
present case, I think the circumstances r elied upon by the
District Court are well within the "outside permissible
limits" of extraordinary rehabilitation and are
commensurate with circumstances "found exceptional in
existing case law." United v. Serafini, 233 F.3d 758, 772 (3d
_________________________________________________________________

Thus, under the Majority's rationale, less tr oubled defendants need to do
more to reach the goal of extraor dinary rehabilitation than defendants
with few to no skills and highly negative attitudes and behaviors. In my
view, this approach unfairly punishes the for mer. A defendant's positive
behaviors and strengths prior to conviction do not negate his
postconviction "commitment to repair and r ebuild" his life or render his
postconviction behavorial changes less real or significant. Our
"definition" of extraordinary rehabilitation simply requires a "truly
repentant defendant" who has made "concr ete gains toward turning his
life around." Sally, 116 F.3d at 81. Yeaman and Mendenhall have
demonstrated the requisite gains for extraor dinary rehabilitation.
Indeed,
the record shows that it is highly unlikely that they will commit another
crime. This type of rehabilitation is extraor dinary for any criminal to
achieve, regardless of his previous background.

                               20
Cir. 2000). As noted above, both Yeaman and Mendenhall
distinguished themselves from other inmates and took
concrete steps toward changing their lives. Therefore, I do
not think the District Court abused its discr etion by
departing downward for extraordinary r ehabilitation.

The Majority had no need to address the extent of the
District Court's departures because it r ejected
extraordinary rehabilitation altogether . Because I think a
departure is permissible, I will briefly discuss my views on
the penological reasonableness of the court's departure.

We have long been guided by the standar d of 18 U.S.C.A.
S 3742(e)(3), which directs a District Court to impose a
sentence "sufficient but not greater than necessary, to
comply with the purposes set forth in paragraph (2) of this
subsection." Paragraph (2), in turn, lists four purposes of
sentencing, which include the need:

       (A) to reflect the seriousness of the of fense, to promote
       respect for the law, and to provide just punishment for
       the offense;

       (B) to afford adequate deterrence to criminal conduct;

       (C) to protect the public from further crimes of the
       defendant; and

       (D) to provide the defendant with needed educational or
       vocational training, medical care, or other correctional
       treatment in the most effective manner .

Id. S 3553(a)(2). I believe we should return to the purposes
of sentencing, and attempt to make sense of what we are
trying to accomplish whenever we are called upon to review
a sentence, or as here, determine whether the extent of a
court's sentencing departure was reasonable.

The first purpose of sentencing is to reflect the
seriousness of the offense, promote r espect for the law, and
to provide just punishment. In this case, we have empirical
evidence that this purpose has been met. The sentence and
time already served have brought about a r emarkable
rehabilitation in these two individuals, who ar e now leading
exemplary lives. The evidence of record indicates that they
have indeed developed a respect for the law. Both Yeaman

                               21
and Mendenhall exhibited model behavior while confined,
took steps to change their careers, accepted r esponsibility
for their illicit conduct, and sincerely apologized. If all
offenders left confinement as these two have, we could fold
our tents. A criminal justice delivery system could not hope
for better results.

The second purpose of sentencing is to affor d adequate
deterrence to criminal conduct. Yeaman and Mendenhall
have already served time. They have been punished.
Sending them back to prison for a longer ter m would not
enhance the deterrent effect of their original sentences. It is
widely recognized that the duration of incarceration
provides little or no general deterrence for white collar
crimes. See A. Mitchell Polinsky & Steven Shavell, On the
Disutility and Discounting of Imprisonment and the Theory of
Deterrence, 28 J. LEGAL S TUD. 1, 12 (Jan. 1999). For
individuals committing these types of crimes, the
probability of being apprehended and incar cerated is a
powerful deterrent in of itself, because the "disutility of
being in prison at all and the stigma and loss of earning
power may depend relatively little on the length of
imprisonment." Id. at 12 (suggesting that"less than-
maximal sanctions, combined with relatively high
probabilities of apprehension" is "optimal" for white collar
crimes). Thus, there is not a scintilla of evidence here that
longer sentences will deter anyone from committing mail
and wire fraud.2 It is mer e speculation. Hence, I cannot say
the District Court abused its discretion byfinding that this
condition was met.

The third purpose of sentencing is to pr otect the public
from further crimes by the defendant. In this case, there is
absolutely no evidence that either Yeaman or Mendenhall
would commit further crimes. Indeed, here we have expert
opinion to the contrary, stating that this behavior is "not
_________________________________________________________________

2. I cannot help noting in the margin that upon Robert Downey Jr.'s re-
arrest following a year's sentence in prison, he said "[t]he threat of
prison
has been eliminated for me. I know I can do time now." Claudia Puig &
Kelly Carter, Are Awards Good for Downey? Hollywood's Attention May
Not Help Actor Kick Drug Habit, U.S.A. T oday, March 15, 2001, at D1. So
much for punishment and prison as a deterrent!

                               22
likely to be repeated." And as explained above, Yeaman's
and Mendenhall's rehabilitative efforts were extraordinary:
They did more than "they were supposed to do" and made
"concrete gains toward `turning [their lives] around.' " Sally,
116 F.3d at 81. Based upon their recor ds and the evidence
in this case, the most likely conclusion is that Y eaman and
Mendenhall will never commit fraud or any other crime
again.

The fourth goal of sentencing is to provide needed
educational or vocational training, medical car e, or other
correctional treatment in the most ef fective manner. No one
even argues that Yeaman or Mendenhall need such
services.

I believe that a departure serves the historical,
penological, and statutory purposes of sentencing, even as
set forth in the Guidelines. Yet, under the Majority's
mandate, Yeaman and Mendenhall will be r eturned to
prison, perhaps for as many as four years-- at a cost to
the U.S. taxpayer of roughly a quarter of a million dollars.
To me this case illustrates the sheer folly and utter
nonsense of offense-based theory, and the need to use
corrections-based sentencing. There is not a shred of
evidence that either Yeaman or Mendenhall need re-
incarceration. No penologist could hope for better results
from the criminal justice delivery system than these
repentant, rehabilitated, and now fully functioning and
productive individuals.

In closing, I find the quote from Pope's An Essay on
Criticism, a bit ironic. See Maj. Op. fn. 6. The full strain of
Pope's quote, however, is instructive. It r eads:

       Good nature and good sense must ever join,
       To err is human, to forgive, divine.

Because it is human to err, we must employ our good sense
and nature, and rise to forgiveness. I cannot see that we
have. If ever there is a place where good nature and good
sense are not conjoined, it is in the U.S. Sentencing
Guideline scheme-- a mechanical construct that is devoid
of feeling. Forgiveness could not possibly have been a
flicker in its framers' eyes. One of the primary goals of
sentencing outlined in Section 3742(e)(3) is to"provide just

                               23
punishment for the offense." But, law divor ced from
common sense is seldom just. In my view, this case is no
exception.

Hence, I respectfully submit this concurr ence and
dissent.

A True Copy:
Teste:

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

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