                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                 FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                             MAY 31, 2007
                              No. 06-15067                 THOMAS K. KAHN
                          Non-Argument Calendar                CLERK
                        ________________________

                 D. C. Docket No. 04-00037-CR-OC-10-GRJ

UNITED STATES OF AMERICA,


                                                     Plaintiff-Appellant,

                                   versus

WESTLY BRIAN CANI,

                                                     Defendant-Appellee.


                        ________________________

                 Appeal from the United States District Court
                     for the Middle District of Florida
                      _________________________

                               (May 31, 2007)

Before ANDERSON, BARKETT and PRYOR, Circuit Judges.

PER CURIAM:

     The government appeals the 12-month sentence of Westly Brian Cani for
various crimes related to the possession and distribution of heroin as an inmate in a

federal penitentiary. See 18 U.S.C. § 1791(a)(1), (a)(2), (b)(1), (d)(1)(C); 21

U.S.C. § 841(a)(1), (b)(1)(C); 21 U.S.C. § 846. The Presentence Investigation

Report calculated an advisory Sentencing Guidelines range of 262 to 327 months

of imprisonment, which the district court recalculated downward to a range of 12

to 18 months of imprisonment before it imposed the sentence of 12 months of

imprisonment. The government contends that the district court erroneously

departed downward from the initial Guidelines range and imposed an unreasonable

sentence. Because we agree that the district court erred when it departed

downward, we vacate Cani’s sentence and remand to the district court for

resentencing. We do not reach the question whether Cani’s sentence is

unreasonable.

      During the sentencing hearing and in its post-hearing memorandum, the

district court began by identifying the applicable Guidelines range to be 262 to 327

months of imprisonment, based on an offense level of 34 and a criminal history

category of 6. The district court next considered Cani’s arguments for downward

departure, after which the court reduced Cani’s offense level to 6 and recalculated

the applicable Guidelines range to be 12 to 18 months of imprisonment. The

district court then evaluated the factors of section 3553(a) and sentenced Cani to 12



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months of imprisonment and 6 months of community confinement.

      The government contests both the downward recalculation of the applicable

Guidelines range and the ultimate sentence imposed. First, the government argues

that the district court based the downward departure on at least one impermissible

factor and did not provide adequate explanation of the departure to allow

meaningful review by this Court. Second, the government contends that the 12-

month sentence is procedurally and substantively unreasonable.

      We review de novo whether a factor is a permissible ground for a downward

departure from the Guidelines. United States v. Crawford, 407 F.3d 1174, 1178

(11th Cir. 2005). The district court based the downward departure on an

impermissible factor. The district court departed downward primarily because of

Cani’s addiction to heroin, which the court described as the “overriding factor in

Cani’s case.” The Guidelines make clear that “[d]rug or alcohol dependence or

abuse is not a reason for a downward departure.” United States Sentencing

Guidelines § 5H1.4 (Nov. 2005); see also id. § 5K2.0(d)(1) (identifying drug

dependence or abuse as “prohibited departures”).

      The district court also failed to provide adequate explanation of the other

grounds for the downward departure to allow meaningful appellate review.

Although the district court identified grounds for downward departure other than



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Cani’s drug addiction, the district court declined to attribute specific levels of

departure to each ground. “[W]e cannot discern to what extent the district court

would have departed had it not [erroneously] considered the [drug addiction].”

United States v. Dailey, 24 F.3d 1323, 1329 (11th Cir. 1994).

       The district court failed to provide an explanation where specificity was

required. Several of the grounds for downward departure on which the district

court relied are described in the Guidelines as “not ordinarily relevant,” U.S.S.G.

§§ 5H1.3, 5H1.4, 5H1.6, yet the district court made no effort to explain the

extraordinary relevance in this circumstance. The district court relied on section

5K2.10, which provides six factors a district court should consider, but the district

court failed to discuss the factors. Cf. United States v. McVay, 447 F.3d 1348,

1356 (11th Cir. 2006) (“[M]eaningful appellate review is simply not possible due

to the district court’s . . . failure to consider the § 5K1.1(a) factors . . . .”).

       Because the district court based the downward departure in part on an

impermissible factor and did not provide adequate explanation to allow meaningful

review by this Court, Cani’s sentence is VACATED and REMANDED for

resentencing in a manner consistent with this opinion.




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