                                                                                                                           Opinions of the United
2000 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-14-2000

United States v. Stevens
Precedential or Non-Precedential:

Docket 99-1682 & 99-1683




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"United States v. Stevens" (2000). 2000 Decisions. Paper 165.
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Filed August 14, 2000

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

Nos. 99-1682, 99-1683

UNITED STATES OF AMERICA

v.

DWAYNE STEVENS,

       Appellant

ON APPEAL FROM THE
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
(D.C. Criminal Nos. 97-625-02 and 99-165-01)
District Judge: Honorable Ronald J. Buckwalter

Argued March 9, 2000

Before BECKER, Chief Judge, NYGAARD and
GARWOOD,* Circuit Judges.

(Filed: August 14, 2000)



_________________________________________________________________
* Honorable Will L. Garwood, United States Circuit Judge for the Fifth
Circuit, sitting by designation.
       Sylvia A. Russianoff
       Assistant Federal Defender
       Johnathan D. Libby (argued)
       David L. McColgin
       Assistant Federal Defender,
        Supervising Appellate Attorney
       Maureen Kearney Rowley
       Chief Federal Defender
       Federal Court Division
       Defender Association of Philadelphia
       Lafayette Building, Suite 800
       437 Chestnut Street
       Philadelphia, PA 19106-2414
        Counsel for Appellant

       Joseph R. Biden, III (argued)
       Assistant U.S. Attorney
       Michael R. Stiles
       U.S. Attorney
       Walter S. Batty, Sr.
       Assistant U.S. Attorney
       Chief Of Appeals
       615 Chestnut Street
       Suite 1250
       Philadelphia, PA 19106
        Counsel for Appellee

OPINION OF THE COURT

GARWOOD, Circuit Judge:

Defendant-appellant Dwayne Stevens (Stevens) pleaded
guilty to an indictment charging him with one count of
carjacking, in violation of 18 U.S.C. S 2119, and one count
of carrying a firearm during the commission of a violent
crime, in violation of 18 U.S.C. S 924(c). Subsequently,
Stevens pleaded guilty to an information charging another,
separate carjacking offense. At a consolidated proceeding,
the district court sentenced Stevens to 130 months'
imprisonment for the indicted carjacking offense, followed
by a minimum mandatory consecutive term of 120 months'
imprisonment for the firearms offense, and also sentenced

                               2
him to 120 months' for the other carjacking offense, to be
served concurrently with the other sentence. Stevens now
appeals both of his sentences. We affirm.

Facts and Proceedings Below

Stevens committed two separate carjacking offenses on
February 6, 1997, and February 11, 1997. Regarding the
February 11, 1997 offense, Stevens was indicted on
November 20, 1997 in United States District Court for the
Eastern District of Pennsylvania for one count of
carjacking, in violation of 18 U.S.C. S 2119, and one count
of carrying a firearm while committing a violent crime, in
violation of 18 U.S.C. S 924(c). Pursuant to a plea
agreement, he pleaded guilty to both counts on February 2,
1998. Regarding the February 6, 1997 offense, Stevens was
charged by information on March 26, 1999 with another
count of carjacking, to which he pleaded guilty (waiving
indictment) on May 18, 1999. The two cases were
consolidated for sentencing.

The district court sentenced Stevens on August 24, 1999.
Regarding the indictment for the February 11, 1997
offense, the district court sentenced Stevens to a term of
130 months' imprisonment for the carjacking count and a
mandatory consecutive term of 120 months' imprisonment
for the firearm count, to be followed by a three-year term of
supervised release. Regarding the information for the
February 6, 1997 offense, the district court sentenced
Stevens to 120 months' imprisonment and three years of
supervised release, to be served concurrently with his other
sentence. The district court also ordered a $100 special
assessment fee. Final judgment was entered on August 25,
1999, and Stevens filed his notice of appeal for both
sentences on September 1, 1999. The two appeals were
consolidated on September 30, 1999.

Discussion

On appeal, Stevens argues that the district court erred in
failing to "verify" whether he had read and discussed the
presentence investigation report (PSR) with his attorney, in
denying his request for a downward departure, and in
calculating his sentence. Finding no merit to his
arguments, we now affirm.

                                3
I. Rule 32's "Verification" Requirement

FED. R. CRIM. P. 32(c)(3)(A) requires that before imposing
sentence, a district court must "verify that the defendant
and defendant's counsel have read and discussed the
presentence report."1 This Court has declined to interpret
Rule 32 as creating "an absolute requirement that the court
personally ask the defendant if he has had the opportunity
to read the report and discuss it with counsel." United
States v. Mays, 789 F.2d 78, 79 (3d Cir. 1986). Instead, we
have allowed for a more functional fulfillment of the rule,
requiring only that the district court "somehow determine
that the defendant has had this opportunity." Id. at 80.2

In the present case, it appears that the district court fell
short of even this mark. At sentencing, the district court
made the following remarks:

        This is the time set for sentencing in the matter of
       United States v. Dwayne Stevens in connection with
_________________________________________________________________

1. This requirement originally appeared as FED. R. CRIM. P. 32(a)(1)(A),
which provided that before sentencing, the court"shall (A) determine
that the defendant and the defendant's counsel have had the opportunity
to read and discuss the . . . report." In 1994, Rule 32 was amended and
reorganized into its present form. Most of this Court's cases considered
the pre-1994 language of Rule 32, but for purposes of this appeal, the
changes are quite minor and those cases retain their relevance.

2. The Mays court noted that the drafters of Rule 32 explicitly imposed
on district courts the requirement of conducting a direct colloquy with
the defendant elsewhere in the Rule, specifically in subsection (a)(1)(C),
now (c)(3)(C). This subsection requires a district court, before imposing
sentence, to "address the defendant personally and determine whether
the defendant wishes to make a statement and to present any
information in mitigation of the sentence." The Mays court reasoned that
the drafters could have imposed a similar requirement on a court for its
determination about whether the defendant had read and discussed the
PSR with his attorney, but had not. Accordingly, the court declined to
impute such a requirement into the provision at issue here. See Mays,
798 F.2d at 80. In reaching this conclusion, the Mays court disagreed
with the Seventh Circuit, which had construed Rule 32 to impose an
affirmative duty on the part of the sentencing court to address the
defendant directly on the question of his having read and discussed the
PSR with counsel. See United States v. Rone, 743 F.2d 1169, 1174 (7th
Cir. 1984).

                               4
       charges filed in this court to Docket Numbers 97-625
       and 99-6 -- 99-165. A presentence investigation has
       been done with respect to the charges and those
       respective informations or indictments and that
       presentence investigation included that the total
       offense level here was 27 and criminal history category
       was six, and that therefore the guideline provisions
       were 130 to 162 months. And, there is, of course, the
       mandatory consecutive term on Docket 97-625 of ten
       years. Are there any requests for additions or
       corrections to the presentence?"

We have no doubt that the omission by the able trial judge
was inadvertent and doubtless a lapse from his usual
practice. At all events, the statement does not meet Rule
32's mandate that the court "verify," in one way or another,
that the defendant has read and discussed the PSR with
his attorney. In fact, the government concedes that the
district court failed to satisfy this requirement. Stevens
contends that the district court's noncompliance with Rule
32(c)(3)(A) constitutes reversible error and that this Court
should vacate his sentence and remand for resentencing.
Because Stevens did not bring this matter to the district
court's attention, the applicable standard of review is that
of "plain error," as Stevens concedes. See FED. R. CRIM. P.
52(b); United States v. Dozier, 119 F.3d 239, 244 (3d Cir.
1997).

Under the plain error standard of Rule 52(b),3 this Court
may vacate and remand Stevens's sentence only if wefind
that (1) an error was committed; (2) the error was plain;
and (3) the error affected Stevens's substantial rights. See
United States v. Olano, 113 S.Ct. 1770, 1777-78 (1993). In
most cases, the language about affecting substantial rights
"means that the error must have been prejudcial," that is,
"[i]t must have affected the outcome of the district court
proceedings." Id. at 1778. If a forfeited error is "plain" and
"affect[s] substantial rights," a Court of Appeals "has the
authority to order correction, but is not required to do so."
_________________________________________________________________

3. FED. R. CRIM. P. 52(b) provides that "[p]lain errors or defects
affecting
substantial rights may be noticed although they were not brought to the
attention of the court."

                               5
Id. The Court should exercise its discretion to order such a
correction only if the error "seriously affect[s] the fairness,
integrity, or public reputation of judicial proceedings." Id. at
1776.

As the error was "plain," our next inquiry must be
whether it affected Stevens's "substantial rights." No
published opinion of this Court has yet addressed this
question. The Fourth, Sixth, Seventh, Ninth, and Tenth
Circuits have all considered the issue, however, and have
found, under either a "plain error" or "harmless error"
analysis,4 that a district court's failure to comply with the
dictates of Rule 32(c)(3)(A) (or its earlier counterpart) does
not require vacatur and remand if the defendant cannot
demonstrate that he suffered prejudice from the district
court's error. See United States v. Lockhart, 58 F.3d 86, 89
(4th Cir. 1995) (applying plain error analysis to hold that
when defendant pointed to no portion of the PSR that he
would have challenged had the district court conducted an
express inquiry, he did not show prejudice and vacatur and
remand were not warranted); United States v. Stevens, 851
F.2d 140, 144 & n.7 (6th Cir. 1988) (finding no prejudice
from district court's failure to address defendant directly
about an allegedly inaccurate PSR because the court did
not rely on any incorrect information in the PSR, and
refusing to vacate and remand); United States v. Rodriguez-
Luna, 937 F.2d 1208, 1213 (7th Cir. 1991) (declining to
vacate and remand when defendant could not show
prejudice from district court's failure to conduct express
inquiry about the PSR); United States v. Davila-Escovedo,
46 F.3d 840, 844 (9th cir. 1994) (applying harmless error
analysis, without addressing plain error, to deny
_________________________________________________________________

4. The primary difference between the two standards of review is that
under plain error review, the defendant rather than the government
bears the burden of persuasion with respect to prejudice. See Olano, 113
S.Ct. at 1778 ("In most cases, a court of appeals cannot correct the
forfeited error unless the defendant shows that the error was
prejudicial."). Moreover, under plain error review, even if the Court of
Appeals concludes that substantial rights were affected, although it "has
the authority to order correction" it "is not required to do so," id., and
it
should do so only if the error "seriously affect[s] the fairness,
integrity,
or public reputation of judicial proceedings." Id. at 1776.

                               6
defendant's request for resentencing when defendant made
no claim of prejudice from the district court's Rule 32
violation); United States v. Rangel-Arreola, 991 F.2d 1519,
1526 & n.5 (10th Cir. 1993) ("While we recognize
presentence reports are critical to sentencing and fairness
requires the defendant be given the opportunity to read the
report and discuss it with counsel, we will not remand for
resentencing without some showing of prejudice by the
defendant. To remand when no prejudice exists is to
require the district court to undergo an exercise in futility
in order to obtain the same sentence.").

The record reflects that the PSR was sent both to Stevens
personally and to his counsel, and that thereafter and prior
to sentencing defense counsel filed a memorandum with
the court discussing the PSR, and noting with respect to its
recital of Stevens's past criminal convictions that"Mr.
Stevens does not deny his involvement in this conduct."
Similarly, at sentencing defense counsel discussed the
PSR's description of Stevens's prior offenses and stated "Mr.
Stevens does not dispute the fact that he was involved in
that conduct or that he pled guilty to those." Neither
Stevens's original nor his reply brief asserts that either
Stevens or his counsel did not receive and read the PSR or
did not discuss it together; nor does Stevens therein raise
any claim of prejudice or assert any inaccuracy in the PSR.
Nor does anything in the record suggest otherwise. Stevens
merely contends that the district court's error was
"equivalent to a structural defect" in the sentencing
process, affected his substantial rights per se , and therefore
requires automatic vacatur and remand. Wefind this
contention meritless.

At oral argument Stevens's counsel continued to
predicate his Rule 32 contention on the basis of asserted
structural defect. Nor did he assert that Stevens had not
read the PSR or had not discussed it with counsel. He
conceded that Stevens did not deny involvement in the
prior criminal offenses listed in the PSR. However, under
questioning by the court, counsel did assert that Stevens
had not read the entire PSR and had not discussed the
entire PSR with counsel. Counsel also asserted that the
PSR erroneously failed to indicate that a co-perpetrator was

                               7
involved in one of the instant offenses, that Stevens did not
knowingly waive counsel in one of his prior retail theft
convictions, and that the PSR erroneously stated he had
struck the victim in a prior conviction for robbery and
burglary (the latter two contentions are difficult to reconcile
with counsel's above noted statements to the district court
at and before sentencing). Since these contentions were not
raised on brief (nor below), they are waived. See, e.g., In Re
Trans World Airlines, Inc., 145 F.3d 124, 133 (3d Cir. 1998);
Nagle v. Alspach, 8 F.3d 141, 143 (3d Cir. 1993). In any
event, no prejudice is shown. Stevens was sentenced at the
very bottom of the applicable guideline range. None of the
matters mentioned could have affected Stevens's criminal
history category (although the retail theft conviction matter
could have reduced his criminal history points by one) or
the applicable guideline range, and, considering the record
as a whole, it is clear that even if all these matters were
resolved in Stevens's favor there is no reasonable likelihood
that the sentence would have been different.

The Supreme Court has distinguished between two types
of constitutional error that occur at both trial and
sentencing: "trial errors," which are subject to
constitutional harmless error analysis, and "structural
defects," which require automatic reversal or vacatur. See
Arizona v. Fulminante, 111 S.Ct. 1246, 1264-65 (1991);
United States v. Pavelko, 992 F.2d 32, 35 (3d Cir. 1993).
Structural defects "defy analysis by harmless error'
standards," Fulminante, 111 S.Ct. at 1265, because they
"infect the entire trial process," Brecht v. Abrahamson, 113
S.Ct. 1710, 1717 (1993). Without certain "basic
protections" such as the right to counsel or an unbiased
judge, "a criminal trial cannot reliably serve its function as
a vehicle for determination of guilt or innocence, .. . and no
criminal punishment may be regarded as fundamentally
fair." Rose v. Clark, 106 S.Ct. 3101, 3106 (1986) (internal
citations omitted); see also Chapman v. California, 87 S.Ct.
824, 827-28 & n.8 (1967) (observing that some
constitutional minimums are "so basic to a fair trial that
[their] infraction can never be treated as harmless error").

"The list of errors that are structural in quality is a
limited one," West v. Vaughn, 204 F.3d 53, 60 n.7 (3d Cir.

                                8
2000), and includes complete denial of counsel, biased
judges, racial discrimination in selection of grand jury,
denial of self-representation at trial, denial of public trial,
and seriously defective reasonable doubt instruction, see
Neder v. United States, 119 S.Ct. 1827, 1833 (1999) (listing
cases). See also United States v. Mortimer, 161 F.3d 240,
241-42 (3d Cir. 1998) (finding structural defect in judge's
unexplained absence from the courtroom during defense
counsel's closing argument); Henderson v. Frank , 155 F.3d
159, 170 (3d Cir. 1998) (deprivation of right to counsel at
suppression hearing constituted structural defect).
Structural errors at sentencing include deprivation of
counsel during the sentencing hearing itself, see United
States v. Salemo, 61 F.3d 214, 221-22 (3d Cir. 1995),
abdication of judicial role by authorizing a probation officer
to determine the manner of restitution, see United States v.
Mohammad, 53 F.3d 1426, 1438-39 (7th Cir. 1995), and in
absentia sentencing, see Hayes v. Arave, 977 F.2d 475,
479-80 (9th Cir. 1992). "Stevens invites this Court to add to
this "very limited class of cases," Johnson v. United States,
117 S.Ct. 1544, 1549 (1997), noncompliance with Rule
32(c)(3)(A)'s verification requirement. We must decline his
invitation. First, it is indisputable that a violation of Rule
32(c)(3)(A) is nonconstitutional error, which generally cannot
amount to a structural defect. See United States v.
Quintero, 38 F.3d 1317, 1331 (3d Cir. 1994) (finding
violation of statutory right nonconstitutional error).5
Second, we do not consider this error a structural defect
because the district court's failure to verify whether Stevens
had read and discussed the PSR with counsel does not
"necessarily render [the sentencing process] unfair." Rose,
106 S.Ct. at 3106 (emphasis added). At sentencing, Stevens
was represented by counsel before an impartial judge; in
_________________________________________________________________

5. Nonconstitutional error is harmless when "it is highly probable that
the error did not contribute to the judgment." United States v. Dispoz-O-
Plastics, Inc., 172 F.3d 275, 286 (3d Cir. 1999) (quoting Government of
Virgin Islands v. Toto, 529 F.2d 278, 284 (3d Cir. 1976)); see also
Kotteakos v. United States, 66 S.Ct. 1239, 1248 (1946) (when reviewing
nonconstitutional errors on direct appeal, conviction or sentence will
only be set aside if "the error itself had substantial influence" on the
outcome). Accordingly, without any showing of prejudice,
nonconstitutional error will usually be deemed harmless.

                               9
the presence of both these protections, we recognize a
"strong presumption" against finding any other errors to be
structural defects. See id. The district court's
noncompliance with Rule 32(c)(3)(A) did not infect"each
and every aspect" of Stevens's sentencing, but rather only
the determination of the extent of Stevens's familiarity with
the PSR. Cf. Hays, 977 F.2d at 479. Stevens was still able
to make any and all objections to the PSR, as well as the
government's arguments, and had the opportunity to
address the court before sentencing. The impact, if any, of
this error--and as noted above, Stevens makes no
competent allegation of inaccuracy in the PSR, or that he
never read it6--was localized and did not exhibit the same
"pervasive" effect as the structural errors that this Court
and others courts have recognized. See id.

Our conclusion finds support in two of this Court's
recent opinions, United States v. Faulks, 201 F.3d 208 (3d
Cir. 2000), and United States v. Beckett, 208 F.3d 140 (3d
Cir. 2000). In Faulks, the district court violated FED. R.
CRIM. P. 43(a) by resentencing Faulks by written judgment
only, instead of orally and in Faulks's presence. This Court
held that this error required automatic vacatur and
resentencing because a defendant's right to be "eyeball[ed]"
by the sentencing judge was "not a meaningless formality"
but rather a "fundamental procedural guarantee that places
the defendant before the judge at a culminating moment of
the criminal judicial process." Faulks, 201 F.3d at 209,
211. This protection, the Faulks court found, was "deeply
rooted" in the Confrontation Clause of the Sixth
Amendment. See id. at 211. Stevens has not alleged a Rule
43(a) violation and has not provided anything beyond his
own unfounded assertions to demonstrate the "special
importance" of the district court's error that would render
it a structural defect in the sentencing process. Id. The
Faulks court observed that the requirement that the
_________________________________________________________________

6. Moreover, without some showing that his attorney actually failed to
discuss the PSR with Stevens, we will not presume that counsel acted
negligently or otherwise provided ineffective assistance. See Strickland
v.
Washington, 104 S.Ct. 2052, 2065 (1984) ("[A] court must indulge a
strong presumption that counsel's conduct falls within the wide range of
reasonable professional assistance.").

                               10
defendant be present at both sentencing and resentencing
was "the embodiment of a value deeply embedded in our
polity (and our jurisprudence)." Id. at 209. While no one
disputes the importance of the defendant's understanding
the PSR, which is "the critical document not only in the
sentencing process, but also in the deliberations of the
Parole Commission and the Bureau of Prisons," Mays, 798
F.2d at 80, Rule 32(c)(3)(A)'s verification requirement does
not exhibit an even remotely similar "deeply rooted"
genealogy.

In Beckett, this Court held that the district court's failure
to provide Beckett his right to allocution on resentencing
did not require vacatur and resentencing because the
district court had departed downward and sentenced
Beckett below the applicable guidelines range and Beckett
had demonstrated no prejudice. See Beckett, 208 F.3d at
148 (citing United States v. Lewis, 10 F.3d 1086, 1092 (4th
Cir. 1993)). Discussing the allocution right, the Supreme
Court in United States v. Green, 81 S.Ct. 653 (1961), held
that an earlier version of Rule 32 required that the
defendant himself, and not merely his attorney, have an
opportunity to address the court before sentencing. See id.
at 655. In doing so, the Court traced the roots of the
common law allocution back to the seventeenth century
and observed that the need for that right persisted despite
the many intervening changes in criminal procedure since
that time. See id. ("The most persuasive counsel may not be
able to speak for a defendant as the defendant might, with
halting eloquence, speak for himself."). Despite the
importance of this right, the Supreme Court held soon after
Green that denial of the allocution right was not cognizable
on federal habeas corpus review because it "is not a
fundamental defect which inherently results in a complete
miscarriage of justice, nor an omission inconsistent with
the rudimentary demands of fair procedure." Hill v. United
States, 82 S.Ct. 468, 471 (1962).

By contrast, the requirement that the sentencing court
verify that the defendant has read and discussed the PSR
with counsel was a point of some controversy and little
consensus until 1983, when the drafters of the Rules of
Criminal Procedure added it to Rule 32. See FED. R. CRIM.

                               11
P. 32 advisory committee's notes (chronicling dispute over
and eventual adoption of this requirement). We find it
significant that a defendant's right to allocution,
indisputably more valued and "deeply rooted" than the
verification requirement of Rule 32, nonetheless remains
subject to harmless error analysis and fails to rise to the
level of a structural defect. In light of that fact, as well as
the general presumption against expanding the list of
structural defects, we are unable to conclude that the
district court's error in this case constituted a structural
defect. Accordingly, we join the Fourth, Sixth, Seventh,
Ninth, and Tenth Circuits in holding that noncompliance
with Rule 32(c)(3)(A) does not require vacatur and
resentencing without at least some showing of prejudice by
the defendant. See Lockhart, 58 F.3d at 89; Stevens, 851
F.2d at 144 & n.7; Rodriguez-Luna, 937 F.2d at 1213;
Davila-Escovedo, 46 F.3d at 844; Rangel-Arreola, 991 F.2d
at 1526 & n.5.

As the Mays Court noted, district court errors like this
one are regrettable and easily avoidable, and we exhort
district courts to engage in the "simple practice" of
addressing defendants directly to ensure they have read
and discussed the PSR with counsel. See Mays, 798 F.2d at
80. Nevertheless, we cannot agree that this type of error
constitutes a structural defect in the sentencing process. In
the absence of any showing of prejudice or the denial of
substantial rights caused by this error, Stevens's claim
must fail.

II. Refusal to Depart Downward

In his second point on appeal, Stevens argues that the
district court erred in denying his request for a downward
departure. At his sentencing hearing, Stevens moved for a
downward departure on three separate grounds: (1)
Stevens's criminal history category of VI significantly
overrepresented the severity of his criminal history; (2)
Stevens's post-offense rehabilitation, including the
completion of religious and relationship-oriented courses,
warranted downward departure; and (3) that a
"combination of factors," including the fact that Stevens
spent a significant amount of time in county jail facilities in
New Jersey and Pennsylvania while awaiting his sentencing

                                 12
hearing, warranted a downward departure.7 Regarding the
third basis for departure, Stevens contended that the length
of his incarceration in these county jails and the allegedly
substandard conditions there were "mitigating
circumstances" not taken into consideration by the United
States Sentencing Commission that militated in favor of
departure pursuant to U.S.S.G. S 5K2.0.8 At the sentencing
hearing, the court made the following remarks:

       "Before I talk to Mr. Stevens, I think that having
       reviewed the presentence investigation and having had
       the benefit of defense counsel's memorandum with
       regard to the guideline--criminal history category, I
       think that on balance it probably does not over-
       emphasize his criminal record. And, these retail thefts
       were within a short span of time. There were a number
       of them, three of them, in fact. And, I think the range
       here of criminal six is appropriate based upon the
       presentence investigation and his prior record, so I
       won't change that.

       With regard to any other downward departures, the
       Court finds that there isn't a significant enough--
       although the Court feels it has the authority to grant a
       departure here, the Bible studies and other studies the
       defendant has engaged in are admirable, and studies I
       think someone facing what he is facing would in fact
_________________________________________________________________

7. Evidently, Stevens had been shuttled between various county jails
while awaiting sentencing. He spent 35 days in Mercer County, New
Jersey, 75 days in Lehigh County, Pennsylvania, and 132 days in
Passaic County, New Jersey.

8. U.S.S.G. S 5K2.0 provides in relevant part:

"[T]he sentencing court may impose a sentence outside the range
established by the applicable guidelines, 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.' . . . The decision as to whether
and to what extent departure is warranted rests with the sentencing
court on a case-specific basis . . . . Presence of any such factor may
warrant departure from the guidelines, under some circumstances, in
the discretion of the sentencing court."

                               13
       do and participate in. As to the incarceration factor,
       which Counsel brought up, while the Court recognizes
       that conditions in county prisons might not be as
       conducive to and indeed aren't as conducive to getting
       certain kinds of programs to him, I don't think what
       has been represented to the Court here is the type of
       incarceration that would warrant any consideration on
       the guidelines for departure."

Stevens concedes, as he must, that in denying the motion
on the first two grounds, the district court clearly stated
that it had the authority to grant a departure on these
grounds but chose not to do so. He maintains, however,
that in considering the third basis for departing, the
"combination of factors" regarding his presentence
incarceration, the district court did not make clear whether
it was denying the departure on legal or discretionary
grounds.

This Court's jurisdiction to consider Stevens's argument
depends on the basis for the district court's ruling. See
United States v. Denardi, 891 F.2d 269, 271-72 (3d Cir.
1989). If the ruling was based on the district court's belief
that a departure on the grounds proffered by the defendant
was legally impermissible, we have jurisdiction to determine
whether the district court's understanding of the law was
correct. See United States v. Mummert, 34 F.3d 201, 205
(3d Cir. 1994). "By contrast, if the district court's ruling
was based on an exercise of discretion, we lack
jurisdiction." Id. If the district court's stated reasons are
ambiguous--so that the record does not reflect whether the
court's denial is based on legal or discretionary grounds--
then the proper remedy is to "vacate the sentence and
remand for the district court to clarify the basis for its
ruling." Id.; see also United States v. Evans, 49 F.3d 109,
112 (3d Cir. 1995).

We find that the district court's comments were not
sufficiently ambiguous as to require vacatur and remand.
At the outset of the second paragraph, the court set out to
discuss "any other downward departures." It then
acknowledged that it had the authority to grant a departure
on the basis of these factors, which were post-offense
rehabilitation and "the incarceration factor." Regarding

                               14
Stevens's post-offense rehabilitation activities, such as his
Bible study classes, the district court found them
admirable but not sufficient to warrant a downward
departure. This was clearly a discretionary decision.
Assuming arguendo that the condition of Stevens's pretrial
confinement is a permissible basis for downward departure,9
it is similarly clear that the district court's denial of
Stevens's request on this basis was also discretionary.
When the district court stated "although the Court feels it
has the authority to grant a departure here" we think it was
referring to all of the "other downward departures" sought
by Stevens, and not just the one referable to the Bible
studies, which is the next item that the Court took up.
Under these circumstances, when the district court stated
that "I don't think what has been represented to the court
here is the type of incarceration that would warrant any
consideration on the guidelines for departure," the Court
was not stating that it had no legal authority to grant a
departure based on the conditions of Stevens's pretrial
confinement, but rather that Stevens had not persuaded
the court that a departure was appropriate in his case. This
was an exercise of discretion and therefore unreviewable.
See Mummert, 34 F.3d at 205.
_________________________________________________________________

9. While there has been some contention among the district courts of
this Circuit over the propriety and wisdom of considering the conditions
of confinement as a basis for downward departures, several decisions
indicate that granting a departure on this ground"is not categorically
foreclosed." United States v. Ogembe, 41 F. Supp.2d 567, 571 (E.D. Pa.
1999); see also United States v. Pacheco, 67 F. Supp.2d 495, 498 (E.D.
Pa. 1999) ("While exceptionally hard conditions of confinement might
qualify for a departure . . . , a defendant must demonstrate to the court
that the conditions compare unfavorably to those suffered by other
inmates.") (internal citations omitted); United States v. Miranda, 979 F.
Supp. 1040, 1044-45 (D.N.J. 1997), appeal dismissed, 159 F.3d 1354
(3d Cir. 1998) (denying downward departure based on conditions of
pretrial confinement as record was "too sparse" to demonstrate that the
conditions were "sufficiently deplorable" ); United States v. Sutton, 973
F.
Supp. 488, 493 (D.N.J. 1997), aff 'd, 156 F.3d 1226 (3d Cir. 1998)
("Unusual pretrial confinement . . . in either length or severity of
condition, can properly be considered by the sentencing court.") We do
not decide the question of whether confinement conditions constitute a
permissible basis for downward departure.

                               15
III. Sentence Calculation

In a separate pro se brief, Stevens claims that when
calculating his sentence for the February 11, 1997
carjacking offense, the district court improperly imposed a
five-level enhancement based on the offense characteristic
of "brandishing" a firearm, pursuant to U.S.S.G.
S 2B3.1(b)(2)(C). While this enhancement would normally
have applied to this carjacking offense, because Stevens
also received a mandatory minimum ten-year concurrent
sentence for carrying a firearm, under 18 U.S.C.S 924(c),
the enhancement did not apply to the February 11
carjacking. See U.S.S.G. S 2K2.4, App. Note 2.10 However,
as reflected by the PSR, Stevens's sentence fully complied
with the guidelines: pursuant to section 2K2.4, the
"brandishing" enhancement was specifically not applied to
Stevens's sentence for the February 11, 1997 offense.11 The
enhancement was applied, however, to Stevens's sentence
for his February 6, 1997 carjacking offense, respecting
which he was not charged with a firearms violation.
Applying the five-level enhancement to his sentence for the
February 6, 1997 carjacking was entirely proper. 12
_________________________________________________________________

10. U.S.S.G. S 2K2.4, Application Note 2, provides in relevant part:

        "Where a sentence under this section is imposed in conjunction
       with a sentence for an underlying offense, any specific
characteristic
       for the possession, use, or discharge of an explosive or firearm .
. .
       is not to be applied in respect to the guideline for the underlying
       offense."

The Background Note states:

        "18 U.S.C. SS 844(h), 924(c), and 929(a) provide mandatory
       minimum penalties for the conduct proscribed. To avoid double
       counting, when a sentence under this section is imposed in
       conjunction with a sentence for an underlying offense, any specific
       offense characteristic for explosive or firearm discharge, use, or
       possession is not applied in respect to such underlying offense."
11. Regarding the February 11, 1997 offense, Stevens did receive a four-
level enhancement for abducting his victims, pursuant to U.S.S.G.
S 2B3.1(b)(4), and a two-level enhancement for committing an offense
that involved carjacking, pursuant to U.S.S.G. S 2B3.1(b)(5).

12. Regarding the February 6, 1997 offense, Stevens received the two-
level carjacking enhancement, as well as a one-level enhancement for
committing an offense that involved a loss (actual or intended) of more
than $10,000, pursuant to U.S.S.G. S 2B3.1(b)(7).
16
Conclusion

Stevens's sentences are

AFFIRMED.

A True Copy:
Teste:

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

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