                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                                        PUBLISH
                                                                           SEP 11 1998
                   UNITED STATES COURT OF APPEALS
                                                                        PATRICK FISHER
                                                                               Clerk
                                TENTH CIRCUIT



 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,
 v.
                                                          No. 97-2088
 ROGER ANDREW TALK, a/k/a
 Roderick Talk,

       Defendant - Appellant.


                 Appeal from the United States District Court
                       for the District of New Mexico
                         (D.C. No. CIV-96-1191-JC)


Mary Y.C. Han, Albuquerque, New Mexico for the Defendant - Appellant.

James T. Martin, Assistant U.S. Attorney (John J. Kelly, United States Attorney,
with him on the brief), Albuquerque, New Mexico for the Plaintiff - Appellee.


Before BRISCOE , McKAY and LUCERO , Circuit Judges.


LUCERO , Circuit Judge.



      Roger Andrew Talk moves this court to vacate his sentence pursuant to 28

U.S.C. § 2255. His motion is based on     Koon v. United States , 116 S. Ct. 2035

(1996), which, he argues, changed the standard of review applied on appeal to a
sentencing court’s departure from the sentencing guidelines. More precisely, he

argues that under Koon this court erred by rejecting downward departures

awarded to him on two occasions by the United States District Court for the

District of New Mexico. According to appellant, had we reviewed those

departures under the correct standard of review, we would have upheld

them—thus, his current sentence, based as it is on an erroneous reversal of all

downward departures entertained by the sentencing court, would have to be

vacated.

                                           I

      Convicted of aggravated sexual abuse, Talk was sentenced to a term of

imprisonment, with no upward or downward departures. Both Talk and the

government appealed his sentence, which was reversed and remanded for vacation

and resentencing on the grounds that an adjustment for acceptance of

responsibility was unwarranted and an enhancement for use of force was required.

See United States v. Talk , 13 F.3d 369 (10th Cir. 1993) (“   Talk I ”).

      At resentencing, the district court departed downwards because (1) Talk’s

criminal conduct was a single act of aberrant behavior and (2) Talk had strong

family and community ties and responsibilities. In response to the government’s

appeal, this court reversed and remanded, ordering that Talk’s sentence be

vacated and that he be resentenced at the offense level that would have applied in


                                          -2-
the absence of the downward departure.      See United States v. Talk , No. 94-2120,

1995 WL 66583, at *1 (10th Cir. Feb. 7, 1995) (“    Talk II ”).

      At resentencing, however, the district court once again granted defendant’s

motion for a downward departure, finding that “there is new information not

previously considered by this Court or the Tenth Circuit Court of Appeals in

determining the appropriateness of a downward departure.”          See I R., tab 98, at 2.

The court relied on a combination of factors for this decision, including the

defendant’s family ties, educational accomplishment, employment record, lack of

criminal history, and temperance.    Id. On appeal, we once again reversed, noting

that “Congress has divested judges of [the] latitude” at sentencing shown in

Talk’s case. See United States v. Talk , No. 95-2179, 1995 WL 712678, at *1

(10th Cir. Dec. 4, 1995) (“ Talk III ”). Further, we determined that the district

court was bound by the terms of our mandate in     Talk II not to depart below the

offense level specified therein. Consequently, we remanded for resentencing in

accordance with Talk II . Id. at **1-**2.

      At his third and final resentencing, the district court denied the defendant a

downward departure. No appeal was taken. Once         Koon was handed down,

however, Talk filed the present § 2255 motion, claiming error in       Talk II and Talk

III in the appellate court’s application of an insufficiently deferential standard of

review to the sentencing court’s downward departures. He argues that this


                                          -3-
erroneous review violates his constitutional rights to due process, resulting in

substantial injustice. The district court, though recognizing the tension between

Koon and both Talk II and Talk III , denied the motion, finding that “[t]his court

is not in a position to reverse the Tenth Circuit’s clear directive.”   See I R., tab

12, at 6; id. at tab 14. The district court granted Talk a certificate of

appealability.   See 28 U.S.C. § 2253(c)(1)(A) & (B). He now appeals.

                                              II

       We first consider three procedural obstacles to Talk’s present appeal:

procedural bar, certification of appealability, and law of the case. In the peculiar

circumstances of this case, Talk surmounts the first two of these obstacles. Law

of the case, however, appears to preclude any claim of error based on       Talk II ’s

consideration of family ties and responsibilities.

                                              A

       Though Talk has already appealed his sentence three times, he has not

raised the question at hand. “A defendant who fails to present an issue on direct

appeal is barred from raising the issue in a § 2255 motion, unless he can show

cause for his procedural default and actual prejudice resulting from the alleged

errors, or can show that a fundamental miscarriage of justice will occur if his

claim is not addressed.”     United States v. Allen , 16 F.3d 377, 378 (10th Cir.

1994) (citing United States v. Frady , 456 U.S. 152, 167-68 (1982)). However, if


                                             -4-
the government fails to raise    Frady ’s procedural bar until the appellate level, it is

not entitled to disposition on those grounds.       See id. at 379; see also United States

v. Hall , 843 F.2d 408, 410 (10th Cir. 1988) (holding that because government

failed to raise Frady defense before district court and on appeal, it is deemed “to

have waived its interest in the finality of the judgment”). We may raise         Frady sua

sponte if doing so will further “‘the interests of judicial efficiency, conservation

of scarce judicial resources, and orderly and prompt administration of justice.’”

Allen , 16 F.3d at 378-79 (quoting     Hines v. United States , 971 F.2d 506, 509 (10th

Cir. 1992)). Where these interests are not furthered, however, we can simply

address the merits of the petition.    See id. at 379.

       In this case, the government failed to raise this defense before the district

court. Moreover, substantial resources have already been spent by both sides in

litigating the merits, so procedural disposition may be inefficient.       See Hardiman

v. Reynolds , 971 F.2d 500, 503 n.5 (10th Cir. 1992). We therefore exercise our

discretion not to raise a procedural bar to Talk’s motion.

                                                B

       Talk commenced this collateral attack on August 30, 1996, so it is governed

by the requirement in the Antiterrorism and Effective Death Penalty Act that a

certificate of appealability be issued prior to appeal.      See 28 U.S.C. §

2253(c)(1)(B). Certificates of appealability may be issued by district courts.         See


                                             -5-
United States v. Simmonds , 111 F.3d 737, 741 & n.4 (10th Cir. 1997). Such

certification may issue only when a petitioner “ma[kes] a substantial showing of

the denial of a constitutional right.”   See 28 U.S.C. § 2253(c)(2). In addition, the

certificate “shall indicate which specific issue or issues satisfy [this] showing.” §

2253(c)(3).

       The district court issued a certificate of appealability that certainly fails to

satisfy this last requirement. Further, it is by no means obvious that Talk made a

substantial showing of the denial of constitutional right. But the government fails

to raise any objection to the district court’s certification, and, although the

absence of a certificate precludes an appeal, an erroneously-issued certificate

does not deprive us of jurisdiction to hear a certified appeal.    See Young v.

United States , 124 F.3d 794, 799 (7th Cir. 1997).

       The certificate is a screening device, helping to conserve judicial
       (and prosecutorial) resources. . . . But once the briefs have been
       written and the case heard, there is little point in scrutinizing the
       certificate of appealability. An obligation to determine whether a
       certificate should have been issued, even if the parties do not present
       this issue for decision—a step entailed by the conclusion that a
       proper certificate is a jurisdictional requirement—would increase the
       complexity of appeals in collateral attacks and the judicial effort
       required to resolve them, the opposite of the legislative plan.

Id. Accordingly, we do not raise the validity of the certificate   sua sponte .




                                             -6-
                                              C

       The magistrate judge, and by adoption the district court, held that the

district court was not free to ignore the prior mandate of this court in     Talk II . See

Appellant’s Br., App. 1, at 6 (“[T]he court is mindful of the Tenth Circuit’s

explicit directive to resentence Talk to level 31.”). Though not stated explicitly,

we have no doubt that the rationale for refusing the requested § 2255 relief was

law of the case.   See id. (“This Court is not in a position to reverse the Tenth

Circuit’s clear directive.”).

       If Koon does work an intervening change in the standard of review

applicable to downward departures, however, that “may serve as a cogent reason

for relaxing the doctrine of the law of the case.”      United States v. Platero , 72 F.3d

806, 811 (10th Cir. 1995). Indeed, a court of appeals errs by holding that law of

the case, as determined in an earlier appeal from conviction, precludes a

petitioner from securing relief under 28 U.S.C. § 2255 on the basis of an

intervening change in the law.      See Davis v. United States , 417 U.S. 333, 342

(1974). Consequently, the law of the case, as relied on by the magistrate judge

and district court, will only apply if Talk’s § 2255 motion is not sustainable on its

merits.

       The government also argues, however, that         Talk I correctly reviewed the

district court’s initial refusal to downward depart. As the government reads that


                                             -7-
case, the district court refused in its discretion to grant Talk a downward

departure. Appellee’s Br. at 21. Consequently, that decision should continue to

control the outcome of this case, regardless of the strength of any     Koon -based

claims against Talk II or Talk III . Although this claim is meritless in part, we

agree that Talk I does preclude Talk’s collateral attack on     Talk II ’s denial of a

departure based on family ties and responsibilities.

       By definition, Talk I cannot have reviewed a discretionary refusal to depart

because we lack jurisdiction to conduct any such review.        See United States v.

Eagan , 965 F.2d 887, 893 (10th Cir. 1992). Furthermore, the district court’s

initial refusal to depart does not become binding under law of the case. In       Talk I ,

this Court vacated Talk’s sentence and remanded for resentencing,        see Talk I , 13

F.3d at 372, requiring the district court to begin anew with de novo sentencing

proceedings, see United States v. Ortiz , 25 F.3d 934, 935 (10th Cir. 1994). The

district court was only bound by the law of the case as stated by     Talk I , not by its

own previous refusal to depart.    See United v. Smith , 930 F.2d 1450, 1456 (10th

Cir. 1991). “[T]he court on remand has the discretion to entertain evidence that

could have been presented at the original sentencing even on issues that were not

the specific subject of the remand.”    United States v. Moore , 83 F.3d 1231, 1233

(10th Cir. 1996).




                                            -8-
      That said, however, Talk I holds that as a matter of law, Talk’s family

responsibilities “are explicitly mentioned in the Guidelines as being irrelevant for

purposes of departure.”     See Talk I , 13 F.3d at 371. Although that holding is

certainly not beyond challenge,    see Koon , 116 S. Ct. at 2045 (holding that “family

ties and responsibilities” are “discouraged factor” permitting departure in

exceptional circumstances), Talk’s § 2255 motion does not appear to take issue

with Talk I ’s ruling on this point. Under the law of the case, therefore, the

district court was bound at resentencing to refuse to consider his family

circumstances.

                                           IV

      28 U.S.C. § 2255 permits a collateral attack on grounds that a “sentence

was imposed in violation of the Constitution or laws of the United States.” 28

U.S.C. § 2255.   1
                     Talk argues that his sentence was imposed in violation of 18

U.S.C. § 3742, which      Koon construes as requiring deferential appellate review of

downward departures, and in violation of his Fifth Amendment right to due

process. We consider his statutory claim first.

                                            A




      1
        Relief under § 2255 is available on other grounds—for example, if “the
sentence was in excess of the maximum authorized by law,” 28 U.S.C. §
2255—but Talk does not invoke these alternatives.

                                           -9-
      Talk asserts that he is entitled to relief under 28 U.S.C. § 2255 because his

sentence was imposed in violation of the laws of the United States. But not every

violation of a statute can be remedied by motion under § 2255. Rather, such error

will only be cognizable when it “qualifies as ‘a fundamental defect which

inherently results in a complete miscarriage of justice, [or] an omission

inconsistent with the rudimentary demands of fair procedure.’”          Knox v.

Wyoming Dep’t of Corrections State Penitentiary      , 34 F.3d 964, 968 (10th Cir.

1994) (quoting Reed v. Farley , 512 U.S. 339, 348 (1994)).       2
                                                                     A nonconstitutional,

nonjurisdictional error must “present exceptional circumstances where the need

for the remedy afforded by the writ of habeas corpus is apparent.”          Hill v. United

States , 368 U.S. 424, 428 (1962) (quotation omitted). This heightened showing

applies because “there is no basis . . . for allowing collateral attack ‘to do service

for an appeal.’” United States v. Timmreck , 441 U.S. 780, 784 (1979) (quoting

Sunal v. Large , 332 U.S. 174, 178 (1947)).

      The contours of the “fundamental defect” exception have not been

extensively mapped. As the First Circuit has noted, the Supreme Court has only

considered whether claims of nonconstitutional, nonjurisdictional error were



      2
          Although both Reed and Knox are 28 U.S.C. § 2254 cases, they are
germane here because “‘§ 2255 was intended to mirror § 2254 in operative
effect,’ at least when alleged statutory violations are the source of a petitioner’s
collateral attack.” Knox , 34 F.3d at 967 (quoting Reed , 512 U.S. at 353).

                                          - 10 -
properly brought under 28 U.S.C. § 2255 on four occasions.       See Knight v. United

States , 37 F.3d 769, 773 (1st Cir. 1994). Three such errors were found not to be

actionable: denial of allocution in sentencing in violation of Fed. R. Crim. P.

32(a), see Hill , 368 U.S. at 428; “technical” error under Fed. R. Crim. P. 11 in the

procedure for taking a guilty plea,   see Timmreck , 441 U.S. at 784-85; and a

subsequent policy change by the United States Parole Commission that frustrates

the subjective expectations of a sentencing court,   see United States v. Addonizio ,

442 U.S. 178, 184-90 (1979). In only one case, where a subsequent change in

substantive law made a defendant’s formerly illegal behavior lawful, has the

Supreme Court allowed such a claim to be brought under § 2255.       See Davis , 417

U.S. at 346.

       The courts of appeals have made little effort to delineate the line that

separates cases such as   Hill and Davis , in large part because procedural default

bars so many nonconstitutional, nonjurisdictional claims from substantive review

under § 2255. Although numerous cases have held that sentencing errors

typically do not to give rise to a miscarriage of justice sufficient to excuse

procedural default, see, e.g. , United States v. Richards , 5 F.3d 1369, 1370-71

(10th Cir. 1993) (holding successive § 2255 motion procedurally barred because

petitioner failed to raise sentencing error on direct appeal and failed to show

fundamental miscarriage of justice), very few cases have had any occasion to


                                           - 11 -
determine which sentencing errors are “fundamental” and therefore correctable

under § 2255, and which are not. Because the government has passed up any

argument that Talk has procedurally defaulted, we are presented with the question

of whether Talk’s claimed error is one that is “fundamental” in nature.

       In United States v. Gattas , 862 F.2d 1432 (10th Cir. 1988), we held that a

sentencing court’s violation of Fed. R. Crim. P. 32(c)(3)(D) is sufficiently

fundamental to support a claim under § 2255.          Id. at 1434. Gattas concerns the

second sentence of Rule 32(c)(3)(D), which requires a sentencing court to make a

written record of its resolution of contested matters concerning the presentence

report and to attach the record to the report.       Id. at 1433. 3 Even though that



       3
         The full text of Rule 32(c)(3)(D), as it read at the time relevant to
consideration in Gattas , is as follows:

       “If the comments of the defendant and the defendant's counsel or
       testimony or other information introduced by them allege any factual
       inaccuracy in the presentence investigation report or the summary of
       the report or part thereof, the court shall, as to each matter
       controverted, make (I) a finding as to the allegation, or (ii) a
       determination that no such finding is necessary because the matter
       controverted will not be taken into account in sentencing. A written
       record of such findings and determinations shall be appended to and
       accompany any copy of the presentence investigation report
       thereafter made available to the Bureau of Prisons or the Parole
       Commission.”

Gattas , 862 F.2d at 1433 n.2 (quoting Fed. R. Crim. P. 32(c)(3)(D)). The Rule
has since been amended on a number of occasions. The text of Rule 32(c)(3)(D),
albeit somewhat revised, now appears at Fed. R. Crim. P. 32(c)(1).

                                            - 12 -
requirement is “ministerial,” it is nonetheless “a significant enough part of the

sentencing process to support an action under Section 2255.”         Id. at 1434. A

presentence report “may have an important influence on a defendant’s

classification in a prison, his ability to obtain furloughs, the treatment programs

provided to him, and his parole determinations.”       Id. Gattas concludes that

“transmission of an accurate presentence report, which includes a written record

of the sentencing judge's resolution of contested matters in the report, is vitally

important to the post-sentencing lives of criminal defendants,” and consequently

“jurisdiction under Section 2255 is appropriate to correct violations of . . . Rule

32(c)(3)(D).” Id.

      If an error in compiling “the central document in the correctional process”

is actionable under § 2255,    id. , then an error that results in a significantly

miscalculated sentence may be as well.       See, e.g. , United States v. Ammar , 919

F.2d 13, 15-16 (3d Cir. 1990) (holding that violation of Fed. R. Crim P. 43(a) at

sentence revision raises “possibility of error as to the length of sentence that was

intended [which is] a fundamental defect cognizable under 28 U.S.C. § 2255”).

Appellant contends that if    Talk II had applied the correct standard of appellate

review of downward departures, his offense level would have been at least nine

levels below 31. Instead of his 108-month sentence, Talk would have received no

more than 51 months, less than half his current term of imprisonment.


                                           - 13 -
        Under the unusual circumstances of this case, we may assume—without

deciding—that an error of this magnitude falls within the terms of        Gattas .

Because we ultimately conclude that Talk cannot substantiate the error he alleges,

there is no need to resolve conclusively whether such error is actionable by means

of a § 2255 petition.

                                             B

        Before reaching the merits of Talk’s claim, however, we must also consider

the government’s contention that      Koon cannot be applied retroactively to        Talk II

in light of Teague v. Lane , 489 U.S. 288 (1989).      4
                                                           Teague holds that, with certain

exceptions inapplicable to the present case, “new constitutional rules of criminal

procedure will not be applicable to those cases which have become final before

the new rules are announced.” 489 U.S. at 310. Thus,           Teague plainly applies

only to rules that are both new and constitutional.        Cf. Bousley v. United States ,

1998 WL 244204, at *5 (May 18, 1998) (holding that            Teague does not bar § 2255

petition for retroactive application of   Bailey v. United States , 516 U.S. 137

(1995), because “[t]he only constitutional claim made” is not new).




        4
            Talk II was decided on February 7, 1995.       Koon was decided on June 13,
1996.

                                           - 14 -
       Talk’s statutory claim asks us to apply a rule that is neither new nor

constitutional.   5
                      Koon ’s prescriptions for appellate review are based on an

interpretation of 28 U.S.C. § 3742, a congressional enactment in force at all times

during Talk’s sentencing.       See Koon , 116 S. Ct. at 2046 (interpreting statutory

directive, 18 U.S.C. § 3742(e)(4), that courts of appeals should “give due

deference to the district court’s application of the guidelines to the facts”). These

prescriptions are not constitutional.        See United States v. McLamb , No. 95-6773,

1996 WL 79438, at *3 n.4 (4th Cir. 1996) (stating that “        Teague does not bar the

retroactive application on collateral review of a decision concerning the reach of

a federal statute . . . or . . . a sentencing guideline”);   accord Oliver v. United

States , 90 F.3d 177, 179 n.2 (6th Cir. 1996). Nor is        Koon ’s rule new. It is well-

established that a “statute cannot mean one thing prior to the Supreme Court’s

interpretation and something entirely different afterwards.”         United States v.

Shelton , 848 F.2d 1485, 1489 (10th Cir. 1988) (quotation omitted).          Koon neither

“imposes a new obligation on the States or the Federal government,”           Teague , 489

U.S. at 301, nor, as a case based squarely on statutory interpretation, does it

announce a result not already “dictated” by existing law,        id. ; see also Dodson v.




       5
         We therefore have no cause to consider petitioner’s other objections to
Teague ’s application, such as his assertion that Teague does not apply to § 2255
proceedings.

                                               - 15 -
Zelez , 917 F.2d 1250, 1255 (10th Cir. 1990) (finding rule not new for   Teague

purposes where dictated by precedent and statutory law).

                                            C

       At the time Talk II was decided, this court reviewed guideline departures

under a three-tiered standard: (1) de novo review of whether the circumstances of

the case present a factor not adequately taken into consideration by the

Sentencing Commission which would justify departure; (2) clearly erroneous

review of the factual determinations underlying the decision to depart; and (3)

reasonableness review of the degree of departure.      See United States v.

Maldonado-Campos , 920 F.2d 714, 719-20 (10th Cir. 1990). In effect        Koon split

the first de novo inquiry in two. Plenary appellate review still applies to the

question of whether the factual circumstances supporting departure are

permissible departure factors under any circumstances. But a district court’s

resolution of whether the particular factual circumstances of a case make it

atypical and warrant departure is essentially factual, and is reviewed for abuse of

discretion. See United States v. Collins , 122 F.3d 1297, 1303-05 (10th Cir.

1997). The second and third steps of     Maldonado-Campos remain unaltered.       See

id. at 1303. All four steps of the departure review are subject to a unitary abuse

of discretion standard.   Id.




                                          - 16 -
       In reversing the nine-level downward departure awarded by the district

court, Talk II holds that “Talk's criminal history does not form a valid basis for

departure. . . . Finally, when the events surrounding the rape are fully considered,

they do not suggest a single act of aberrant behavior.”      Talk II , 1995 WL 66583,

at *1 (citations omitted).

       Even if these determinations were made under the first de novo step of

Maldonado-Campos review, that alone would not establish a conflict with          Koon ,

which permits an appeals court to determine de novo that the factors cited were

not permissible grounds for departure. But if       Talk II determined de novo that the

factors cited by the district court were not so atypical as to take the case out of

the heartland of the guidelines, then that would likely be inconsistent with     Koon

because the determination of whether factors        warrant —rather than

permit —downward departure is      in most cases for the district court to make, and

we must review such a determination deferentially.        See Collins , 122 F.3d at

1303. There will, however, be     some cases in which an appellate court should

determine de novo whether an allegedly special circumstance is of a kind that

permits departure.   See id. at 1303 n.4 (citing United States v. Rivera , 994 F.2d

942, 951 (1st Cir. 1993)). In such cases, the appellate court “will have to perform

the quintessentially legal function of interpreting a set of words, those of an

individual guideline, in light of their intention or purpose, in order to identify the


                                           - 17 -
nature of the guideline’s ‘heartland’ (to see if the allegedly special circumstance

falls within it).”   Rivera , 994 F.2d at 951. With these admittedly awkward

distinctions in mind, see United States v. Archuleta , 128 F.3d 1446, 1449 (10th

Cir. 1997) (“It is not always an easy matter to determine where de novo review

ends and deference begins.”), we review the departure factors considered in      Talk

II. 6

        We may readily dispose of any departure based on Talk’s limited criminal

history. As Koon makes clear, a sentencing court abuses its discretion when it

departs downwards on grounds that Criminal History Category I, which is

applicable to first-time offenders such as Talk, overstates the seriousness of a

defendant’s criminal history or likelihood for recidivism.     See Koon , 116 S. Ct. at

2052-53 (citing 1992 U.S.S.G. § 4A1.3). Inasmuch as the district court premised


        6
          We need not examine the court’s consideration of family ties and
responsibilities because Talk I remains binding on that point.        See supra section
III.C. In any case, we are unpersuaded that       Talk II erred on this point. Family
ties and responsibilities are a “discouraged” departure factor,      see Archuleta , 128
F.3d at 1449, which means that “the court should depart only if the factor is
present to an exceptional degree . . . ,”   Koon , 116 S. Ct. at 2045. The district
court made no finding of exceptionalism with regard to Talk’s family
circumstances; in fact, it simply noted Talk’s “strong family and community ties
and obligations.” Accordingly, we think it likely that the      Talk II court rejected
these grounds for departure on a purely      legal basis—that absent a finding of
exceptionalism, family circumstances are a legally impermissible basis for
departure. Cf. United States v. Rodriguez-Velarde , 127 F.3d 966, 968 (10th Cir.
1997) (“Ordinary family responsibilities can be very great.”) (quoting        United
States v. Dyce , 91 F.3d 1462, 1466 (D.C. Cir. 1996)). Such a legal determination
is appropriately made de novo.

                                           - 18 -
departure on these grounds, it was in error—whatever the standard of appellate

review employed.

      Talk II ’s review of the decision to depart on the basis of “aberrational

behavior,” however, is not so readily affirmed. The district court held that “the

criminal conduct in this case was a single act of aberrant behavior in that the act

was spontaneous and thoughtless, and no planning was involved.” Order Pursuant

to Government’s Motion to Reconsider Downward Departure, at 1.           Talk II

rejected this finding, concluding instead that “when the events surrounding the

rape are fully considered, they do not suggest a single act of aberrant behavior.”

Talk II , 1995 WL 66583, at *1.

      The aberrance of a criminal act is an encouraged factor for departure.       See

United States Sentencing Guidelines Manual, ch. 1, pt. A4(d) (policy statement),

at 8 (1997) (stating that “single acts of aberrant behavior . . . may justify

probation at higher offense levels through departures”);    see also United States v.

Pena , 930 F.2d 1486, 1495 (10th Cir. 1991) (relying on this provision to justify

downward departure). Under       Koon , a district court is legally not authorized to

depart on the basis of aberrance if an applicable guideline already takes it into

account. Koon , 116 S. Ct. at 2045. Because none does here,      Talk II ’s rejection

of this departure factor was not based on a legal determination. Rather, it must

have been based on a disagreement with the district court’s conclusion that Talk’s


                                          - 19 -
crime was sufficiently aberrational to remove the case from the heartland of the

guidelines. As Koon and Collins both make abundantly clear, that is a factual

judgment by the district court which we review deferentially.

       Ultimately, however, Talk cannot establish that      Talk II failed to make this

determination under an appropriately deferential standard of review. We cannot,

given the contrary law then prevailing, conclude with certainty that the       Talk II

court applied Koon ’s second step correctly. However, in rejecting the departure

for aberrational behavior,    Talk II may well have meant that the factual findings

underlying the district court’s finding of aberrance were clearly erroneous.      7
                                                                                      In

other words, Talk II may have rejected the aberrational behavior departure under

the second step of Maldonado-Campos . See Maldonado-Campos , 920 F.2d at

720; cf. Green v. Branson , 108 F.3d 1296, 1305 (10th Cir. 1997) (“We assume

that the district court performed its review function properly in the absence of

evidence to the contrary.”). As Talk’s § 2255 motion contains no grounds to

dispute such a finding, we must conclude that Talk has not conclusively

established any errors at    Talk II that would require us to grant his motion.



       7
         In this regard, we note that both the government and Talk urged the Talk
II court to apply a “clearly erroneous” standard of review to the aberrance
determination. See No. 94-2120, Appellant’s Br. at 14-16; Appellee’s Br. at 8,
12; Appellant’s Reply Br. at 6 (“We argue, however, that the district court here
was clearly erroneous in concluding that defendant’s violence against the victim
was completely unprecedented, spontaneous, and unplanned.”).

                                           - 20 -
                                         D

      Talk cannot establish a violation of the “laws of the United States” on

direct appeal of his sentence. By the same token, his inability to establish

prejudice means that his constitutional claims must fail as well.

      AFFIRMED .




                                       - 21 -
No. 97-2088, United States v. Talk

BRISCOE , Circuit Judge, concurring:

       I concur in the majority’s affirmance of the district court’s denial of Talk’s

28 U.S.C. § 2255 motion to vacate his sentence. I write separately because I

conclude Talk has not asserted a cognizable basis for collateral attack of his

sentence under the limited scope of § 2255.

       Grounds for successful collateral attacks under § 2255 are limited far

beyond errors justifying reversal on direct appeal.   United States v. Blackwell ,

127 F.3d 947, 954 (10th Cir. 1997). In particular, relief is warranted under §

2255 only if the alleged error is “jurisdictional,” “constitutional,” “a fundamental

defect which inherently results in a complete miscarriage of justice,” or “an

omission inconsistent with the rudimentary demands of fair procedure.”      Hill v.

United States , 368 U.S. 424, 428 (1962).

       Reduced to its essence, Talk’s argument is that this court, in reviewing the

sentence on appeal in   Talk II , applied a de novo standard rather than an abuse of

discretion standard in determining whether the factors cited by the district court

warranted departure from the sentencing guidelines. Talk does not argue, nor can

he argue, this alleged error was jurisdictional. Further, I am not persuaded the

alleged error is constitutional. Although a defendant has certain constitutional

rights in relation to sentencing (e.g., right to be sentenced based on reliable

information, United States v. Robinson , 30 F.3d 774, 787 (7th Cir. 1994); right
not to be sentenced while incompetent,       United States v. Soldevila-Lopez    , 17 F.3d

480, 490 (1st Cir. 1994)), I have found no case recognizing a constitutional right

to a particular standard of appellate review, nor have I found a case recognizing a

constitutional right to be sentenced by a particular entity (e.g., district court vs.

appellate court).   See generally Field v. Sheriff of Wake County        , 831 F.2d 530,

536 (4th Cir. 1987) (no constitutional right to be sentenced by jury);       United

States v. Fitzpatrick , 548 F.2d 105, 108-09 (3d Cir. 1977) (no constitutional right

to be sentenced by trial judge).

       This leaves only the possibility that Talk has asserted a viable statutory

claim. The majority acknowledges the standards for statutory claims announced

in Hill , but ultimately relies on   United States v. Gattas , 862 F.2d 1432 (10th Cir.

1988), which held a sentencing court’s failure to make a written record of its

resolution of contested matters concerning the presentence report and attach the

record to the report, as required by Fed. R. Crim. P. 32(c)(3)(D), was sufficiently

fundamental to support a claim under § 2255. The conclusion in            Gattas rested on

the fact that presentence reports can heavily influence “a defendant’s

classification in prison, his ability to obtain furloughs, the treatment programs

provided to him, and his parole determinations,” and thus are “vitally important

to the post-sentencing lives of criminal defendants.”      Id. at 1434. I am not

persuaded the “vitally important to the post-sentencing lives of criminal


                                             -2-
defendants” statement in   Gattas , focused as it was on the particular facts in that

case, was intended to operate as a standard in future cases for determining

whether a cognizable § 2255 claim has been asserted. In fact, I believe the

adoption of this statement as a standard for determining the viability of a

statutory claim is erroneous in that it waters down the “fundamental miscarriage

of justice” and “omission inconsistent with the rudimentary demands of fair

procedure” standards established long ago by the Supreme Court.          See Hill , 368

U.S. at 428. I conclude Talk has not alleged a viable statutory claim under these

stringent standards.

      Although the majority suggests application of a de novo standard rather

than an abuse of discretion standard would have “result[ed] in a significantly

miscalculated sentence,” I disagree. At worst, such an error would have resulted

in this court substituting its judgment for that of the district court with respect to

whether particular factors warranted a downward departure from the sentencing

guidelines. In my opinion, such a result constitutes neither “a fundamental defect

which inherently results in a complete miscarriage of justice,” nor “an omission

inconsistent with the rudimentary demands of fair procedure.”      Id.




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