Appeal from the United States District Court for the District of Columbia (No. 02cr00311-01)
Before: Ginsburg, Chief Judge, and Edwards and Roberts,
The opinion of the court was delivered by: Roberts, Circuit Judge
Argued September 28, 2004
The district judge in this case declined to sentence the defendant according to the Sentencing Guidelines because he disagreed with the Guidelines. As the judge put it, he was "not going to be the instrument of injustice in this case." Presentence Hearing Tr. at 4 (July 18, 2003). The Supreme Court has explained that " `[s]imple justice' is achieved when a complex body of law developed over a period of years is evenhandedly applied." Federated Dept. Stores, Inc. v. Moitie, 452 U.S. 394, 401 (1981). The district judge's apparent election to sentence according to his own lights, rather than pursuant to the Sentencing Guidelines binding on him and on us, compels us to vacate and remand so that we may be certain Tucker is sentenced under the Guidelines and in accordance with the rule of law we are all duty-bound to uphold.
On June 20, 2002, a police officer on a routine patrol approached Darin M. Tucker and asked him "What's up?" In response, Tucker charged the officer, causing him to fall backward. The officer pursued Tucker across the street, caught him, and placed him under arrest for assaulting a police officer. In the search incident to arrest, the officer discovered two clear plastic bags containing 45.3 grams of crack cocaine. On March 20, 2003, pursuant to an agreement with the government, Tucker pled guilty to possession with intent to distribute five grams or more of cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B)(iii).
The pre-departure sentencing range for Tucker under the United States Sentencing Guidelines is not in dispute. Given the level of the offense, Tucker's criminal history category, and a three-offense-level reduction for acceptance of responsibility, the appropriate pre-departure sentencing range was 70-87 months' imprisonment. United States Br. at 9 (citing Presentence Investigation Report at 15). The government also indicated that it would not oppose the application of the so-called "safety valve" provisions of the Sentencing Guidelines. See Presentence Hearing Tr. at 4. See generally U.S.S.G. § 2D1.1(b)(6) and § 5C1.2 (allowing reduction in offense level below the mandatory minimum sentence for offenders of 21 U.S.C. § 841 in the absence of certain aggravating characteristics). With application of the safety valve, Tucker was eligible for an additional two-point reduction in offense level, lowering the Guidelines range to 57-71 months' imprisonment. See Sentencing Hearing Tr. at 11 (Sept. 30, 2003); Tucker Br. at 3-4.
For the thirteen months prior to his sentencing, Tucker was released under the supervision of a pretrial monitoring program, which required that he undergo regular drug testing, abide by strict curfew provisions, and maintain contact with the supervising agency. During that time, he violated curfew eleven times and failed two drug tests. See Sentencing Report at 1-3 (Sept. 25, 2003). Tucker also, however, secured a full-time job at a warehouse -- a job that allowed him to contribute to the support of his children. His employer took the time to write an "extraordinarily complimentary letter" praising Tucker as an employee and expressing his wish that Tucker remain able to work for him. Presentence Hearing Tr. at 2-3. Tucker also began attending computer repair courses in the hope of starting his own business. This record was sufficient for the pretrial services officer to recommend that Tucker be transferred from intensive supervision to work release pending his sentencing. Sentencing Report at 3.
At the July 18, 2003 presentence hearing, the district court acknowledged the drug testing failures and curfew violations, but noted Tucker's progress and observed that he had "comported himself as a model citizen since his arrest." Presentence Hearing Tr. at 2. The sentencing judge expressed frustration that the Sentencing Guidelines left him "no choice but to send [Tucker] to prison for nearly five years," an outcome that he viewed as "counterproductive" for Tucker's rehabilitation, the community, and the criminal justice system. Id. at 3. Accordingly, the judge let the parties know that if Tucker were to maintain a clean record until his sentencing the following month, it was his "intention to grant a downward departure in his offense level sufficient ... to place him on probation." Id. He advised the prosecutor "I think you better start preparing your appeal," for even though he was "fully cognizant of what the Court of Appeals in its wisdom may do" he was "not going to be the instrument of the injustice in this case." Id. at 4.
True to his word, on September 30, 2003, after acknowledging again that the "absolute minimum" sentence he could issue Tucker under the Guidelines was 57 months' imprisonment, see Sentencing Hearing Tr. at 3, the judge departed downward to sentence Tucker to five years' probation and a $100 special assessment fine. Although judges departing from the range prescribed by the Guidelines are required to explain their reasons for doing so "with specificity in the written order of judgment and commitment," 18 U.S.C. § 3553(c), the sentencing order simply referred to "U.S.S.G. § 5K2 and reasons set forth on the record at sentencing." Judgment and Commitment Order at 6.
Section 5K2 covers a wide range of grounds for departure, so we cannot say with certainty what the judge intended by referencing this broad section of the Guidelines. The transcript of the hearing, while not providing an explicit delineation of reasons for the downward departure, suggests five possible ones: (1) the fact that Tucker had not committed a criminal offense in the prior nine years; (2) the court's belief that the sentence required by the Guidelines was unjust; (3) Tucker's post-conviction rehabilitation; (4) Tucker's employment record; and (5) Tucker's family ties and responsibilities.
The government appeals the downward departure.
Our review of district court sentencing decisions is governed by 18 U.S.C. § 3742(e). We "accept the findings of fact of the district court unless they are clearly erroneous," id., and review de novo pure questions of law -- such as whether a factor is a permissible basis for departure under any circumstances. See Koon v. United States, 518 U.S. 81, 100 (1996). Until recently, we would review a district court's decision to depart under the Guidelines only for abuse of discretion. In 2003, however, Congress amended § 3742(e) by enacting § 401 of the Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003 (PROTECT Act), Pub. L. No. 108-21, 117 Stat. 650, 667-76 (Apr. 30, 2003). Pursuant to the PROTECT Act amendment, we review the district court's decision to depart from an applicable Guidelines range de novo. 18 U.S.C. § 3742(e); United States v. Riley, 376 F.3d 1160, 1164 (D.C. Cir. 2004). Although the conduct for which Tucker ...