Appeal from the United States District Court for the District of Columbia. (No. 02cr00314-01).
Before: Rogers, Tatel, and Garland, Circuit Judges.
The opinion of the court was delivered by: Garland, Circuit Judge
Opinion for the Court filed by Circuit Judge GARLAND.
Opinion concurring in part and dissenting in part filed by Circuit Judge ROGERS.
The United States appeals from a judgment of the United States District Court, granting defendant Christopher Riley a downward departure from the sentence required by the United States Sentencing Guidelines. Reviewing the judgment de novo, we hold that the departure was improper and remand the case for resentencing.
On April 24, 2003, Riley pled guilty to a federal grand jury's superceding indictment charging him with one count of possession of a firearm and ammunition by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). Riley did not enter into a plea agreement with the government or otherwise stipulate in writing to the facts of his crime. The relevant events are, however, partially chronicled in a government proffer offered at the plea hearing, with which the defendant said he agreed. 04/24/03 Tr. 11-13. They are also chronicled in a Presentence Investigation Report (PSR) prepared by the United States Probation Office, which the defendant agreed contained no material inaccuracies. The following recitation begins with information from these sources.
At approximately 6:45 on the morning of May 7, 2002, a Special Agent of the Federal Bureau of Investigation (FBI) was on his way to an FBI field office in downtown Washington, D.C., when he noticed a brown Chevrolet Suburban automobile parked directly across the street from the field office. The car, which bore Maryland license plates, had two large antennae, a Fraternal Order of Police sticker on the back window, a red light, and a Metropolitan Police Department (MPD) placard on the dashboard. Riley was inside the car. The FBI agent stopped, called the FBI Communications Center to check the car's license plates and, while waiting for a response, observed Riley get out of the car and walk toward a building. After being advised that the car had been reported stolen, the agent approached the building as Riley came out. The agent asked Riley if he was the car's owner, and Riley said that he was.
The FBI agent then asked Riley if he had any weapons; Riley said that he did. A search of his person revealed a fully-loaded, semi-automatic handgun in a holster on his hip. Riley then told the agent that he was an MPD chaplain and produced a Police Department identification card and badge. He admitted that he was not a sworn police officer and that he did not have a permit to carry a gun in the District. He did claim, however, to have a permit to carry the gun in Maryland. (Riley's counsel repeated that claim at the plea hearing.) As for the car, Riley explained that he had just purchased it from a friend, and immediately called the friend to confirm for the agent that a sale had transpired. Meanwhile, MPD officers arrived on the scene and arrested Riley.
The PSR reviewed Riley's criminal history and offense level under the Sentencing Guidelines. It noted that Riley had been convicted in 1989 in Virginia federal court for transporting a firearm across state lines while under felony indictment, in violation of 18 U.S.C. § 922(n). That conviction was the predicate offense for the § 922(g)(1) charge. The PSR also noted that Riley had several other prior convictions.*fn1 Because all of Riley's convictions were more than 10 years old and none involved more than 13 months' imprisonment, the PSR assigned him zero criminal history points, yielding the lowest criminal history category of I. PSR ¶¶ 27-32; see U.S. SENTENCING GUIDELINES MANUAL § 4A1.2(e) (2002) [hereinafter U.S.S.G.]. The PSR also calculated a base offense level of 14 under U.S.S.G. § 2K2.1(a)(6)(A) -- the guideline applicable to violations of § 922 -- and reduced it by two levels for acceptance of responsibility. PSR ¶¶ 16-25.
Riley's criminal history category and offense level generated a guidelines sentencing range of 10 to 16 months' imprisonment. See PSR ¶ 72 (citing U.S.S.G. ch. 5, pt. A (1992)). As the PSR reported, that range rendered Riley ineligible for probation. Id. ¶ 10; see U.S.S.G. § 5B1.1, cmt. n.2; id. § 5C1.1(f). The Probation Office reported that it had received no information that would justify a departure from the guidelines range. PSR ¶ 84.
In a written motion to the district court, filed two days before the sentencing hearing, Riley asserted that there was more to the story than was reflected in the plea hearing and PSR. See Def.'s Mot. for Downward Departure [hereinafter Motion]. He contended that, on the evening of May 6, 2002, he had delivered an invocation at an annual memorial service for law enforcement officers. He then participated in a ''ridealong'' with an MPD officer, and eventually accompanied that officer to a 24-hour shooting range in Maryland. In the morning, he drove directly to work from the shooting range. According to Riley, he was a switching engineer employed as a ''Verizon Federal Contractor'' and assigned to work at an office of the Bureau of Alcohol, Tobacco and Firearms (ATF) near where he was intercepted by the agent. Had it not been for his arrest, he said, he ''would have secured the weapon at the ATF office upon his arrival.'' Id.
Based on this account of his offense conduct, Riley asked the court to depart downward four offense levels so that he could be sentenced to three years' probation. He made this motion pursuant to two provisions of the guidelines manual: U.S.S.G. § 5K2.11, which authorizes a departure if the defendant's conduct did not threaten the harm sought to be prevented by his statutory offense; and U.S.S.G. § 5K2.0, which authorizes a departure if circumstances distinguish a defendant's conduct from the ''heartland'' of offenses covered by the applicable offense guideline. The government responded orally at the hearing. The prosecutor did not address the truth of Riley's factual claims, but contended that they did not justify departure.
At the sentencing hearing on August 29, 2003, the district court granted Riley's motion for a four-level departure and sentenced him to three years' probation. Noting that Riley was ''gainfully employed,'' the court said:
He hasn't done anything wrong since 1989. He supports his children or tries to support his children. He seems to me to be an ideal candidate for probation, and I see no point at all in sending him to prison at this point. I am going to grant the Motion for Departure, and you can put me on Mr. Ashcroft's list.
08/29/03 Tr. 6. Although the court also said that the sentencing issue was ''the reason for which he possessed the weapon,'' id. at 5, it made no mention of the circumstances of Riley's arrest or of his representations regarding the shooting range. The court later noted on its judgment order that it departed downward ''Upon motion of defendant -- §§ 5K.2 and 5K.11 [sic],'' and checked a box indicating that it adopted the factual findings in the PSR. The government contends that the record does not support a downward departure under either U.S.S.G. § 5K2.0 or § 5K2.11.
Our standard of review of decisions to depart from an otherwise applicable guidelines range has recently changed. Previously, pursuant to 18 U.S.C. § 3742(e), we reviewed a district court's factual findings for clear error and its decision to depart from the guidelines for abuse of discretion. See Koon v. United States, 518 U.S. 81, 97-99 (1996). In 2003, however, Congress amended § 3742(e) in § 401(d) of the Prosecutorial Remedies and Tools Against the Exploitation of Children Today Act (PROTECT Act), Pub. L. No. 108-21, 117 Stat. 650 (Apr. 30, 2003). Although courts of appeals must still ''accept the findings of fact of the district court unless they are clearly erroneous,'' we must now review a district court's decision to depart from the guideline range ''de novo.'' 18 U.S.C. § 3742(e); see United States v. Mallon, 345 F.3d 943, 946 (7th Cir. 2003).*fn2 Those circuits that have decided the issue have held that the judicial review provision of the PROTECT Act applies with immediate effect, and without constitutional disability, to appellate proceedings after April 30, 2003, the date the PROTECT Act was signed into law.*fn3 Today, we join them.
Although the PROTECT Act became law five months before Riley filed this appeal and four months before he was sentenced, the conduct for which he was convicted had taken place a year earlier. Riley argues that applying the Act's de novo standard to review sentences for crimes committed before April 30, 2003 would violate the presumption against the retroactive application of statutes. See, e.g., Landgraf v. USI Film Prods., 511 U.S. 244, 268 (1994). But a ''statute does not operate 'retrospectively' merely because it is applied in a case arising from conduct antedating the statute's enactment.'' Id. at 269. Rather, to determine retroactive effect, ''the court must ask whether the new provision attaches new legal consequences to events completed ...