* District Judge for the Western District of Louisiana,

sitting by designation.

1 The original panel opinion in this case issued November

20, 2003. The government filed a petition for rehearing en banc,

contending that we had misconstrued the new standard of review

provisions contained in the Prosecutorial Remedies and Other

Tools to end the Exploitation of Children Today Act of 2003 ——

the PROTECT Act —— Pub. L. 108-21, 117 Stat. 650 (April 30,

2003). The arguments contained in that petition, combined with

subsequent interpretations of the PROTECT Act by other circuits,

have convinced us that revisions to our discussion of the PROTECT

Act’s new standard of review are appropriate. Accordingly, we

withdraw our prior opinion, published at United States v. Bell

, United States Court of Appeals

Fifth Circuit 

## FILED

May 19, 2004

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 03-20194

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

versus

RUBY D. HENRY BELL,

Defendant-Appellee.

-------------------- Appeal from the United States District Court

for the Southern District of Texas

--------------------

Before JOLLY and WIENER, Circuit Judges, and WALTER, * District

Judge.

PER CURIAM:

Defendant-Appellee Ruby D. Henry Bell was convicted on a plea

of guilty for using a telephone to convey a false threat to damage

or destroy a building by means of an explosive, in violation of 18

U.S .C. § 844(e). 1 At sentencing, the district court granted a351 F.3d 672 (5th Cir. 2003), and substitute this one, albeit our

judgment in Ms. Bell’s case remains the same.

2 The investigation uncovered the fact that the arrested

individual had forged documents to enter the United States.

2 defense motion to depart downward within the U.S. Sentencing

Guidelines (“U.S.S.G.” or the “Guidelines”) from a criminal history

category of VI to a criminal history category of IV. The district

court appears to have granted this motion on the basis of

overstate ment of criminal history, as provided for by Guidelines

§ 4A1.3; however, the sentencing colloquy also discussed Bell’s

mental health issues and the court’s concern that incarceration

would lead to a break in her mental health treatment, which the

court wanted to avoid. Because the district court conflated the

elements of several distinct Guidelines provisions in its

discussion of the downward departure, making the true basis for

that departure unclear, we vacate and remand for resentencing.

I. Facts and Proceedings

In an apparent attempt to force the cancellation or

postponement of her probation hearing, Bell telephoned police and

mendaciously informed them that Pakistani terrorists had planted a

bomb at the Brazos County Courthouse in Bryan, Texas. Acting on

Bell’s false report, state an d local police, as well as the FBI,

initiated an intense investigation, which resulted initially in the

arrest and incarceration of a Pa kistani immigrant. 2 Cellular

telephone records helped the police identify Bell as the caller,

after which she was indicted and charged under 18 U.S.C. § 844(e).

B ell pleaded guilty to the indictment, and the pre-sentence3 Bell did correct two factual inaccuracies in the PSR, but

neither is relevant to our discussion today.

4 Pub. L. 108-21, 117 Stat. 650 (April 30, 2003).

3 report (PSR) recommended a total offense level of 6, a criminal

history category of VI, and a guideline imprisonment range of 12 to

18 months. Bell did not object to the PSR, 3 but she made a motion

for downward departure, which the district court granted, revising

her criminal history category downward from VI to IV. This

departure made Bell eligible for probation, and the court assessed

a “term of probation” of three years, subject to conditions that

included six months’ home confinement, community ser v ice, and

participation in treatment programs for drug and alcohol addiction

and mental health.

II. Analysis

On April 30, 2003, the Prosecutorial Remedies and Other Tools

to end the Exploitation of Childr en Today Act of 2003 —— the

PROTECT Act (the “Act”)

—— was signed into law. 4 The Act changed

the standard of r eview courts of appeals apply when considering

some aspects of sentencing departures, essentially establishing a

two-tier review of such departures. Because the Act became

effective after Bell was sentenced and after the government filed

i ts notice of appeal, we must decide (1) whether the Act applies

retroactively to litigants in Bell’s position, and (2) if so, how

the new standard of review is properly applied in the instant case,

given the circumstances surrounding the district court’s departure

and its reasons for departing.5 844 F.2d 209, 211 (5th Cir. 1988).

6 See

, e.g.

, Miller v. Florida , 482 U.S. 423, 430

(1987)(“[N]o ex post facto violation occurs if a change does not

alter ‘substantial personal rights,’ but merely changes ‘modes of

procedure which do not affect matters of substance.’” quoting

Dobbert v. Florida , 432 U.S. 282, 293 (1977)); Lindh v. Murphy

, 521 U.S. 320, 327 (1997)(noting that if the statute at issue

“were merely procedural in a strict sense (say, setting deadlines

for filing and disposition ...), the natural expectation would be

that it would apply to pending cases.”)(citation omitted).

7 See, e.g.

, United States v. Mallon , 345 F.3d 943, 946-47

(7th Cir. 2003); United States v. Willey , 350 F.3d 736, 738-39

(8th Cir. 2003).

8 Although the Eighth Circuit, in United States v. Hutman

, 339 F.3d 773 (8th Cir. 2003), simply applied the de novo standard

summarily, it did cite to Mejia , indicating that the

4 A. Retroactivity

Prior Fifth Circuit panels have examined retroactive

application of newly-announ ced standards of review. In U nited

States v. Mejia

, we characterized a change in the standard of

review as “procedural rather than substantive because it neither

increases the punishment nor changes the elements of the offense or

the facts that the government mus t prove at trial.” 5 As the

Supreme Court has long held that procedural changes in the law may

be applied retroactively without violating the Constitution’s ban

on ex post facto laws, 6 we held in Mejia that the trial court

correctly applied a standard of review that was announced after the

actions that led to the criminal charge in that case.

Other circuit courts that have considered the Act’s standardof-review provision have based their ultimate decision

—— to apply

such standard retroactively 7

—— on that well-known

procedural/substantive dichotomy. 8 As the First Circuit explainedprocedural/substantive distinction was the basis for that part of

its holding.

9 358 F.3d 51, 71-72 (1st Cir. 2004)(citation, footnote

omitted).

10 See United States v. Harris , 293 F.3d 863, 871 (5th Cir.

2002) (“We review a district court’s departure from the range

established by the Guidelines for abuse of discretion. ... The

district court’s decision is accorded substantial deference

because it is a fact intensive assessment and the district

court’s findings of fact are reviewed for clear error.”)(citation

omitted).

5 in United States v. Thurston

,

The change of a standard of appellate review is one in

procedure for the courts; procedural changes that do not

affect substantial rights are not usually considered

impermissibly retroactive

.... The PROTECT Act’s

alteration of the appellate standard of review upsets no legitimate reliance interest by a defendant; it could not

have induced alteration of the behavior that led to the

crime. We see no unfairness to defendants in Congress’s

requiring a closer look by appellate courts at whether a

district court committed an error in deciding that the

guidelines permitted a departure. It is the substance of

the sentencing rules, both in the Guidelines and in the

underlying statutes, that affects defendants. 9

We agree with that assessment of the issue, and conclude that the

Act’s de novo standard of review is applicable in cases, like the

instant o ne, in which sentencing occurred before the Act’s

enactment date. This comports with the Supreme Court’s

retroactivity jurisprudence as well as our prior holding in Mejia

.

B. Application of the De Novo Standard

Prior to the Act, we reviewed a district court’s decision to

depart from the Guideline s for abuse of discretion. 1 0 The Act

explicitly changed the standard of review, but only when courts of

appeals consider “determinations under subsection 3(A) or 3(B)” of

18 U.S.C. § 3742(e), which subsections encompass (1) the district6

court’s issuance of a written statement of reasons fo r the

departure, and (2) the legality of, j ustification for, and

objectives advanced by the factors on wh ich the departure was

based. The relevant statutory language, dealing with guideline

departures and their review, is as follows:

(e) Consideration. Upon review of the record, the court of

appeals shall determine whether the sentence—

....

(3) is outside the applicable guideline range , and

(A) t he district court f ailed to provide the written

statement of reasons required by section 3553(c);

(B) the sentence departs from the applicable guideline

range based on a factor that

—

(i) does not advance the objectives set forth in

section 3553(a)(2); or

(ii) is not authorized under section 3553(b) ; or

(iii) is not justified by the facts of the case; or

(C) the sentence departs to an unreasonable degree from

the applicable guidelines range, having regard for

the factors to be considered in imposing the

sentence, as set forth in section 3553 (a) of this

title and the r easons for the imposition of the

particular sentence, as stated by the district

court pursuant to the provisions of section

3553(c) ; ...

....

The court of appeals shall give due regard to the opportunity

of the district court to judge the credibility of witnesses,

and shall accept the findings of fact of the district court

unless they are clearly erroneous and, except with respect to

determinations under subsection (3)(A) or (3)(B), shall give

due deference to the district court’s application of the

guidelines to the facts. With respect to determinations under

subsection (3)(A) or (3)(B), the court of appeals shall review

de novo the district court’s application of the guidelines to11 18 U.S.C. § 3742(e) (emphasis added).

12 The Act also requires de novo review of the question

whether the district court “failed to provide the written

statement of reasons required by section 3553(c).” 18 U.S.C. §

3742(e)(3)(A). The district court did provide such a written

statement of reasons in the instant case (although there is some

question as to its adequacy, which is discussed in section

II.B.2, infra ), so subsection (e)(3)(A) is inapplicable.

13 See, e.g.

, United States v. Mallon , 345 F.3d 943, 946

(7th Cir. 2003); United States v. Jones , 332 F.3d 1294, 1299

(10th Cir. 2003).

7 the facts. 11

We read this langu age as mandating a two-tier review of

guideline departures, which are addressed generally by subsection

(3). First, we must review d e novo the sentencing court’s decision

to depart (un der subsection (3)(B)), determining whether the

departure is based on appropriate factors and taking into account

the statutory provisions listed in (3)(B)(i) and (ii), the facts of

the case under review, and the sentencing court’s app lication of

the guidelines to those facts. 1 2 Second, if we find the decision

to depart to be appropriate, we must review t he d egree of that

departure for abuse of discretion, based on the sentencing court’s

written statement of reasons for the departure provided pursuant to

§ 3553(c). Other courts of appeal that have considered the Act’s

new standard of review provisions have also concluded that such a

two-tier framework is appropriate. 13

1. The decision to depart

The stated basis for Bell’s sentencing departure, noted in the

district court’s written statement of r easons, was that Bell’s

criminal history category over-represented the seriousness of her14 U.S. v. Thurston , 2004 U.S. App. LEXIS 1658, *59 (Feb. 4,

2004).

15 We note also that, as a practical matter, when

determinations under subsection (3)(B)(i) and (ii) are necessary

—— i.e. , where the factor on which the departure was based has

not already been approved by the Sentencing Commission —— review

under these subsections becomes almost nonsensical under the

Act’s new framework. Specifically, it seems impossible to

determine whether a departure advances the objectives set forth

in section 3553(a)(2), which include reflecting the seriousness

of the offense, providing adequate deterrence, and providing the

defendant with adequate correctional treatment, without

considering the degree of the departure and the actual sentence

imposed. The degree of departure, however, is to be reviewed

only for abuse of discretion under subsection (3)(C), by the

express language of the Act. If the degree of the departure is

8 past offenses, thus warranting a departure under U.S.S.G. §

4A1.3(b)(1). This “factor” on which the departure was based

clearly meets section 3742(e)(3)(B)(i) and (ii)’s requirements, in

that this basis fo r departure has already been considered and

approved by the Sentencing Commission. We agree with the First

Circuit that, “in reviewing a departure under § 3742(e)(3)(B)(i)

and (ii), [we] must accept and may not look behind the Sentencing

Commission’s determination that a particular categorical basis for

departure is permissible or impermissible.” 14 We must nevertheless

conduct our review under subsection (3)(B)(iii) and decide whether

the departure on that basis is “justified by th e facts of the

case.” This task is complicated by the facts that (1) we must

endeavor to do so without reviewing the degree of the departure, as

the latter is to be reviewed under subsection (3)(C), and (2) we

must employ our traditional abuse of discretion standard

—— not the

Act’s newly-imposed de novo review —— regarding that prong of the

analysis. 15considered in any substantive way while making determinations

under subsection (3)(B), we would effectively be expanding de

novo review to the degree of the departure, thus rendering review

under subsection (3)(C) superfluous and contradicting the express

statutory directive.

9 As we review the degree of the departure for abuse of

discretion only, which makes sense in light of the district court’s

superior vantage point to make that fact-intensive determination,

we conclude that the review under sub section (3)(B)(iii) is more

generalized, asking whether a departure (as opposed to the specific

departure granted) on the grounds proffered can be justified under

the facts of the case. Even that limited inquiry, however, is

impossible in the instant case because of the absence of

specificity in the distri ct court’s written statement of reasons

and its apparent conflation of se veral different grounds for

departure.

Our concerns on this point center on the district court’s

apparent grounding of its decision to depart in factors that it did

not discuss in its written statement of reasons. For instance, in

the sentencing colloquy, the district court voiced concern that any

period of incarceration would necessarily entail a break in Bell’s

mental health treatment:

So I’m conflicted between my strong desire to see Ms.

Bell punished for her actions

... and my concern about a

[sic] creating a break in her mental he alth treatment

that she’s currently receiving

, which I t hink would be

the unfortunate result of a period of incarceration....

[E]ven [though] the potential period of incarceration is

so limited, I think that there is a significant

likelihood that there would be a break in her mental

health treatment and counseling that would be too long

, and

... we’re talk ing about ... p utting Ms. Bell back

into the community in not as good a mental health state16 18 U.S.C. § 3742(e)(3)(C) indicates that we should

consider “the reasons for the imposition of the particular

sentence, as stated by the district court pursuant to the

provisions of section 3553(c).”

10 as she currently has as a result of that break in

treatment. So I’m going to grant the motion for downward

departure on this basis, on the bas is of the criminal

history issue . (emphasis added).

This concern for Bell’s mental health treatment was not addressed

in the district court’s statement of reasons required by 3553(c),

yet it appears to be a “factor” on which the downward departure was

based. The statutory framework is unclear as to whether a

rev iewing court may consider “factors” that are not discussed in

the written statement of reasons when making determinations under

subsection (3)(B). As the written statement of reasons is also

crucial to our determination under subsection (3)(C) regarding the

degree of the departure, 16 we c onclude that we must require

clarification from the district court of its reasoning in any

event, which in turn requires a remand.

2. The sentencing colloquy vis-à-vis the written statement

of reasons

The district court appears to have conflated several separate

grounds for departure, as reflected in the text of the sentencing

colloquy. That colloquy evidences the district court’s desire to

prevent an inte rruption in Bell’s mental health treatment, its

belief that her “mental health problems” were a factor in her

previous crimes, and its finding that “her diminished capacity has

been aggravated somewhat by the fact that she was overmedicated for

a time.” In contrast, the court’s written statement of reasons17 214 F.3d 608, 615 (2000). U.S.S.G. § 5K2.0(a) allows a

district court to base a departure on “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....”

18 Thames , 214 F.3d at 614.

19 Even though the government continues to contest the

downward departure, it conceded during the sentencing hearing

that it “[did not] doubt that [Bell’s] being overmedicated by the

11 indicates only that “the nature of the defe ndant’s criminal

history, which is comprised mostly of non-violent, petty theft

offenses, overrepresents her criminal history category.”

This contrast in reasons raises quest ions as to both the

propriety of the decision to depart and the reasonableness of the

degree of that departure. In U nited States v. Thames

, we held that

“the guidelines have already adequately taken into consideration a

defendant’s mental capacity with § 5K2.13, and thus § 5K2.0 is

inapplicable to [the defendant’s] claim that his diminished mental

capacity, derived from his gambling addiction , entitles him to

consideration for a downward departure.” 17 Obviously, this means

that mental capacity may only be taken into account in certain ways

in this circuit, and the written statement of reasons provides no

clues as to how the district court considered this factor.

The defendant in Thames had argued that “his mental condition

made his criminal conduct ‘inadvertent behavior,’” essentially

trying to argue diminished capacity under U.S.S.G. § 5K2.0 instead

of § 5K2.13. 1 8 Here, by contrast, it seems that three distinct

factors

—— (1) the district court’s finding that Bell had been

over-medicated for a period of time, 19 (2) Bell’s history of mentalpsychotropic drugs that she was taking is a factor in this case

...”

20 U.S.S.G. § 4A1.3(b)(1).

21 As was the case in Thames , a downward departure under

U.S.S.G. § 5K2.13 is not available to Bell because her crime

involved a “serious threat of violence.”

12 illness, and (3) the district court’s belief that Bel l was

“receiving adequate mental health treatment and counseling” at the

t ime of sentencing and that interruption of that treatment would

not “serve the defendant or the society well”

—— were relied on by

the district court as justification for its ruling that a criminal

history category of VI “substantially over-represents the

seriousness of the defendant’s criminal history or the likelihood

that the defendant will commit other crimes.” 20

It would not necessarily be improper for a district court to

find that a history of over-medication by psychotropic drugs,

combined with prior offenses that are nonviolent, “petty” crimes,

are a dequate bases for the downward departure allowed here under

U.S.S.G. § 4A1.3. Neither would it necessarily be improper for a

district court to justify this downward departure under Guidelines

§ 5K2.0 on the court’s determination to prevent a break in mental

health treatment based on factual findings that incarceration would

occasion such a break and thereby be detrimental to the interests

of society and the defendant. At the same time, our T hames

decision forecloses consideration of mental health as an indicator

of diminished capacity regarding the crimes at issue, except under

U.S.S.G. § 5K2.13. 2113

The sentencing court’s written statemen t of reasons is

unclear, however, as to which one or more of the foregoing factual

possibilities, if any, is applicable in the instant case. The

district court mig h t have improperly considered Bell’s mental

health in con travention of T hames ; or it might have examined

factors under Guidelines §§ 4A1.3 a nd 5K2.0, concluded that a

downward departure was appropriate, and merely failed to include a

detailed identification of its reasons in the written statement.

In any event, we cannot resolve t he uncertainty from the

court’s written statement, and we decline to proceed without a

clearer understanding of the district court’s reasons. Even under

the deferential abuse-of-discretion standard required under

subsec tion (3)(C), we must have enough information to determine

what conclusions the district court reached, before we can decide

whether the sentence imposed was within the proper exercise of the

sentencer’s discretio n. We therefore vacate Bell’s sentence and

remand her case to the district court to clarify its reasoning.

III. Conclusion

For the foregoing reasons, Bell’s sentence is

VACATED and her case REMANDED for resentencing consistent with this

opinion.