FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

MAY 2, 2005

THOMAS K. KAHN

CLERK

 [PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 03-15136

________________________

D. C. Docket No. 03-00156-CR-1-1

UNITED STATES OF AMERICA, 

Plaintiff-Appellant, 

versus 

CHARLES CRAWFORD JR., 

Defendant-Appellee. 

________________________

Appeal from the United States District Court

for the Northern District of Georgia

_________________________

 (May 2, 2005)

Before EDMONDSON, Chief Judge, MARCUS and PRYOR, Circuit Judges.

PRYOR, Circuit Judge:

This appeal presents two issues regarding the application of the Sentencing

Guidelines: (1) whether the district court clearly erred when it found that Charles
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Crawford Jr. did not engage in more than minimal planning when he participated

in a five year scheme that defrauded the government of $434,032 and involved

over a hundred separate transactions; and (2) whether the district court erred when

it granted a downward departure based on Crawford’s restitution and remorse, lack

of criminal sophistication, and substantial assistance to the government, and

because the loss to the government allegedly overstated Crawford’s criminality. 

Because both the large number of transactions and the deliberate steps Crawford

took to complete those transactions compel a finding that Crawford did not merely

take advantage of a sudden opportunity, we conclude that the district court clearly

erred when it found that Crawford did not engage in more than minimal planning. 

We further conclude that the district court did not apply the correct legal standards

regarding several of the grounds relied upon for departure. We vacate Crawford’s

sentence and remand this case for resentencing in a manner consistent with the

Guidelines both as interpreted in this opinion and the advisory manner explicated

in United States v. Booker, 543 U.S. —, 125 S. Ct. 738 (2005).

I. BACKGROUND

Crawford owned and operated a food store in Atlanta, Georgia, called “Mr.

Wick, Jr.” A large volume of Crawford’s business came from low-income

customers who paid for their food with vouchers from the Georgia Women,
3

Infants, and Children (WIC) supplemental food program. The WIC program,

which is administered by state agencies that receive federal grants, assists lowincome parents and expectant mothers in obtaining nutrition for their children. 

Participants in WIC receive vouchers that allow the bearer to purchase food in an

amount up to the face value of the voucher, and WIC vendors typically redeem

vouchers for an amount less than their face value.

Crawford was approached in 1996 by Edwin Kelley, who offered to sell to

Crawford WIC vouchers that Kelley had purchased from residents of public

housing projects in Atlanta. Crawford and Kelley agreed that Crawford would pay

Kelley for the vouchers in an amount close to the face value of the vouchers,

Crawford would then redeem the vouchers, and Kelley would keep 60 percent of

the profits and give Crawford 40 percent. Crawford and Kelley engaged in over

100 transactions over a five year period involving vouchers with a total face value

of $434,032. The exact number of vouchers that Mr. Wick, Jr. redeemed from the

Georgia WIC program is unknown.

In June 2000, an anonymous informant notified the Georgia WIC program

of Kelley’s activities. An undercover investigation led to Crawford’s arrest in

October 2002. In a written plea agreement, Crawford pleaded guilty to an

information that charged that he, “aided and abetted by others did unlawfully
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receive, conceal and retain to his own use . . . vouchers with a value of more than

One Hundred ($100.00) Dollars, knowing said assets and property to have been

willfully misapplied and obtained by fraud.” Crawford agreed to forfeit an

automobile and $146,092 in a Bank of America bank account and make restitution

to the Georgia WIC program in an amount to be determined later.

The probation officer who prepared Crawford’s Presentence Investigation

Report (PSI) determined that the loss to the Georgia WIC program totaled

$434,032 and recommended restitution to that agency. Crawford did not dispute

these aspects of the PSI. The PSI also recommended that Crawford receive a two

level enhancement in his offense level for “more than minimal planning,” under

United States Sentencing Guideline section 2F1.1(b)(2)(A) & (B). At the

sentencing hearing, Crawford objected to the more than minimal planning

enhancement and contended that, on each occasion, he took advantage of a sudden

opportunity when Kelley offered to sell him WIC vouchers. Crawford also moved

for a downward departure based on several factors, including the extent of his

restitution and his alleged lack of criminal sophistication.

The district court refused to apply the more than minimal planning

enhancement. The district court found that, in each of the more than one hundred

transactions with Kelley, Crawford “took advantage of a situation and the
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opportunity presented.” Crawford “never tried to conceal the offense, nor was he

the one to start [the] scheme . . . .” In addition, the district court granted

Crawford’s motion for a downward departure and reduced Crawford’s offense

level by four. In its order granting the downward departure, the district court

stated that Crawford’s case fell “outside the heartland of other such cases” and that

“all of the grounds taken as a whole warrant downward departure.” The district

court then sentenced Crawford to 60 months’ probation and ordered Crawford to

make $434,032 in restitution to the Georgia WIC program. The government

appeals both the denial of the more than minimal planning enhancement and the

downward departure.

II. STANDARD OF REVIEW

The resolution of this appeal requires the application of two standards of

review. First, a finding by a district court of no minimal planning is a question of

fact that we review for clear error. United States v. Ward, 222 F.3d 909, 910 (11th

Cir. 2000). We cannot find clear error unless “we are left with a definite and firm

conviction that a mistake has been committed.” Glassroth v. Moore, 335 F.3d

1282, 1292 (11th Cir. 2003) (citation and quotation marks omitted). Although the

clear error standard is “purposefully deferential to the district court, we are not

required to rubber stamp the district court’s findings simply because they were
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entered.” McLennan v. Am. Eurocopter Corp., Inc., 245 F.3d 403, 409 (5th Cir.

2001). Review for clear error “does not mean no review.” United States v. Pace,

898 F.2d 1218, 1227 (7th Cir. 1990), cert. denied sub nom. Cialoni v. United

States, 497 U.S. 1030, 110 S. Ct. 3286 (1990). 

The second standard of review is not deferential. “We review questions of

law arising under the Sentencing Guidelines de novo.” United States v. Bush, 126

F.3d 1298, 1299 (11th Cir. 1997) (per curiam). Whether a factor is a permissible

ground for a downward departure from the Sentencing Guidelines is a question of

law. United States v. Kim, 364 F.3d 1235, 1239-40 (11th Cir. 2004).

This appeal does not raise any issue of a violation of the Sixth Amendment,

as explicated in Booker, nor does either party raise any issue of the application of

the Guidelines in a mandatory, rather than advisory, fashion. Because of the

fundamental change in sentencing appeals effected by Booker, we must determine

whether our pre-Booker standards for reviewing application of the Sentencing

Guidelines still apply. We agree with the Fifth Circuit that Booker does not alter

our review of the application of the Guidelines. See United States v. Villegas, —

F.3d —, 2005 WL 627963 at *4-5 (5th Cir. Mar. 17, 2005). Although Booker

established a “reasonableness” standard for the sentence finally imposed on a

defendant, 543 U.S. at —, 125 S. Ct. at 765, the Supreme Court concluded in
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Booker that district courts must still consider the Guidelines in determining a

defendant’s sentence. Id. at —, 125 S. Ct. at 764-65. Nothing in Booker suggests

that a reasonableness standard should govern review of the interpretation and

application as advisory of the Guidelines by a district court. See Villegas, — F.3d

at —, 2005 WL 627963 at *4. Booker did not affect 18 U.S.C. section 3742(f),

which mandates remand of any case in which the sentence “was imposed as a

result of an incorrect application of the sentencing guidelines . . . .” Id. at —, 2005

WL 627963 at *5. 

Although under Booker, the Sentencing Guidelines are an advisory rather

than a mandatory regime, the district court remains obliged to “consult” and “take

into account” the Guidelines in sentencing:

Without the “mandatory” provision, the Act nonetheless requires judges

to take account of the Guidelines together with other sentencing goals.

See 18 U.S.C.A. § 3553(a) (Supp. 2004). The Act nonetheless requires

judges to consider the Guidelines “sentencing range established for . .

. the applicable category of offense committed by the applicable

category of defendant,” § 3553(a)(4), the pertinent Sentencing

Commission policy statements, the need to avoid unwarranted

sentencing disparities, and the need to provide restitution to victims, §§

3553(a)(1), (3), (5)-(7) (main ed. and Supp. 2004). And the Act

nonetheless requires judges to impose sentences that reflect the

seriousness of the offense, promote respect for the law, provide just

punishment, afford adequate deterrence, protect the public, and

effectively provide the defendant with needed educational or vocational

training and medical care. § 3553(a)(2) (main ed. and Supp. 2004).
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Booker, 543 U.S. at —, 125 S. Ct. at 764-65. In short, after Booker, “[t]he district

courts, while not bound to apply the Guidelines, must consult those Guidelines

and take them into account when sentencing.” Id. at —, 125 S. Ct. at 767.

This consultation requirement, at a minimum, obliges the district court to

calculate correctly the sentencing range prescribed by the Guidelines: 

After Booker, the Federal Sentencing Guidelines remain an essential

consideration in the imposition of federal sentences, albeit along with

the factors in § 3553(a). A sentencing court under Booker still must

consider the Guidelines, and, such consideration necessarily requires the

sentencing court to calculate the Guidelines sentencing range in the

same manner as before Booker. 

United States v. Shelton, 400 F.3d 1325, 1332 n.9 (11th Cir. 2005). In other

words, as was the case before Booker, the district court must calculate the

Guidelines range accurately. A misinterpretation of the Guidelines by a district

court “effectively means that [the district court] has not properly consulted the

Guidelines . . . .” United States v. Hazelwood, 398 F.3d 792, 801 (6th Cir. 2005);

accord Villegas, — F.3d at —, 2005 WL 627963 at *7 (“Although the district

court on remand is not bound by the Guidelines, it must consider them, and in

doing so, it ordinarily is required to calculate the proper Guidelines range.”). 

After it has made this calculation, the district court may impose a more severe or

more lenient sentence as long as the sentence is reasonable, see Booker, 543 U.S.
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at —, 125 S. Ct. at 767 (“The courts of appeals review sentencing decisions for

unreasonableness.”), but the requirement of consultation itself is inescapable. 

III. DISCUSSION

Both of the sentencing decisions of the district court were erroneous. The

district court ignored the startling number of transactions between Crawford and

Kelley over a five-year period and Crawford’s actions in maintaining the scheme

when it refused to apply the more than minimal planning enhancement. The

district court also misapplied the Sentencing Guidelines when it granted the

downward departure. We address each sentencing error in turn.

A. More than Minimal Planning

Section 2F1.1(b)(2)(A) of the Sentencing Guidelines (2000 edition)

mandates a two-level increase in the offense level for a defendant who has

engaged in “more than minimal planning” for the commission of the offense. The

commentary to the application instructions in section 1B1.1 explains that this

enhancement involves serial behavior especially in financial crimes:

“More than minimal planning” means more planning than is typical for

commission of the offense in a simple form. “More than minimal

planning” also exists if significant affirmative steps were taken to

conceal the offense. . . .

“More than minimal planning” is deemed present in any case involving

repeated acts over a period of time, unless it is clear that each instance
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was purely opportune. Consequently, this adjustment will apply

especially frequently in property offenses.

In a theft, going to a secluded area of a store to conceal the stolen item

in one’s pocket would not alone constitute more than minimal planning.

However, repeated instances of such thefts on several occasions would

constitute more than minimal planning. . . .

In an embezzlement, a single taking accomplished by a false book entry

would constitute only minimal planning. On the other hand, creating

purchase orders to, and invoices from, a dummy corporation for

merchandise that was never delivered would constitute more than

minimal planning, as would several instances of taking money, each

accompanied by false entries.

U.S.S.G. § 1B1.1 cmt. n.1(f). “[C]ommentary in the Guidelines Manual that

interprets or explains a guideline is authoritative unless it violates the Constitution

or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that

guideline.” Stinson v. United States, 508 U.S. 36, 38, 113 S. Ct. 1913, 1915

(1993). 

The inquiry for more than minimal planning is not limited to the elements of

a particular offense or the completion of the offense itself. A series of acts “that

together constitute a single offense under a particular criminal statute does not

thereby cease to be a series of acts under the ‘more than minimal planning’

guideline . . .; such repeated acts indicate greater culpability and are in fact the

target of the ‘more than minimal planning’ enhancement.” Bush, 126 F.3d at 1300
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n.1. We have, for example, rejected an argument that “three separate instances of

embezzlement should be deemed to be a single act for purposes of the ‘more than

minimal planning’ guideline, because the separate instances of embezzlement

constitute one ‘offense.’” Id. The enhancement requires “a more holistic view” of

the defendant’s conduct “in light of the entire scheme . . . engaged in by [the

defendant] in order to commit the offense.” United States v. Duclos, 214 F.3d 27,

32 (1st Cir. 2000).

If the government proves that an offense involved repeated acts over a

period of time, more than minimal planning is “deemed present.” U.S.S.G. §

1B1.1 cmt. n.1(f). Put another way, a presumption of more than minimal planning

arises whenever repeated acts over a period of time are proved. That presumption

can be rebutted, however, if it is clear that each instance was “purely opportune.” 

If, for example, several fraudulent transactions occur over a period of two years,

more than minimal planning will be deemed present unless it is clear that each one

of the several transactions was purely opportune. Cf. United States v. McCoy, 242

F.3d 399, 405 n.10 (D.C. Cir. 2001). 

The enhancement for more than minimal planning is an acknowledgment

that “purposeful criminal conduct demands greater punishment” than conduct

undertaken without “the opportunity to consider the criminality of [the] act and its
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consequences.” United States v. Scroggins, 880 F.2d 1204, 1213 (11th Cir. 1989).

Planning for a particular offense or engaging in acts to conceal the offense

evidences an awareness that the actions are criminal and a disregard for the

harmful consequences of those actions. The presumption of more than minimal

planning for repeated acts is a reflection of common sense. Serial behavior of a

criminal evidences his deliberation despite a lack of direct evidence of his mental

operations. See Bush, 126 F.3d at 1300. 

The exception to this rule is narrow. “Purely opportune” means “spur of the

moment” conduct, in response “to a sudden, fortuitous opportunity of which the

defendant took advantage without deliberation.” McCoy, 242 F.3d at 405

(citations omitted); see also United States v. Rust, 976 F.2d 55, 57 (1st Cir. 1992);

United States v. Monaco, 23 F.3d 793, 797-98 (3d Cir. 1994); United States v.

Lutz, 154 F.3d 581, 590 (6th Cir. 1998). The exception of purely opportune

conduct from the more than minimal planning enhancement reflects the lesser

culpability of defendants who have not knowingly considered the consequences of

their actions. Cf. Bush, 126 F.3d at 1300 n.1. 

The exception also requires a close temporal relation between a fortuitous

opportunity and an act that takes advantage of the opportunity. A delay between

the opportunity and the act makes it unlikely that the conduct was impulsive,
13

because delay allows time for thought; deliberate action is “slow, unhurried, and

steady as though allowing time for decision on each individual action involved.” 

Merriam-Webster’s Collegiate Dictionary 304 (10th ed. 2001). Direct evidence

that the defendant deliberated about or planned his actions before he took

advantage of an opportunity will also negate the inference. See McCoy, 242 F.3d

at 405. The exception for purely opportune conduct will not apply unless each

repeated act was undertaken impulsively and without deliberation.

The district court found that each of the over 100 instances in which

Crawford bought vouchers from Kelley was purely opportune. That determination

was clearly erroneous. The sheer number of transactions alone makes it highly

unlikely that each transaction was purely opportune. Crawford wrote 184 checks

to Kelley between April 12, 1996, and March 22, 2001, totaling $434,032. 

Crawford’s counsel asserted at the sentencing hearing that “each and every time

[Kelley sold WIC vouchers to Crawford] Mr. Crawford thought it was the last

time,” but that assertion, although incredible, misses the point. 

Over nearly five years, Crawford had many opportunities to consider the

consequences of his actions, yet he did not voluntarily cease his participation in

the scheme. On 184 occasions, Crawford wrote Kelley checks for the WIC

vouchers. After he cashed or deposited the checks, Kelley returned to the store
14

with the 40 percent share he owed Crawford. That delay in the receipt of his share

gave Crawford time to consider his actions. Crawford also had the opportunity to

deliberate whether to redeem the WIC vouchers. That delay presented yet another

opportunity for Crawford to consider the significance and illegality of his conduct. 

Crawford’s receipt, concealment, and retention for his own use of fraudulently

obtained WIC vouchers to defraud the WIC program of $434,032 cannot be called

“spur of the moment conduct, in response to a sudden, fortuitous opportunity of

which [Crawford] took advantage without deliberation.” McCoy, 242 F.3d at 405

(citations omitted). The district court clearly erred when it determined that

Crawford did not engage in more than minimal planning. 

B. Downward Departure

At his sentencing hearing, Crawford asserted several grounds for a

downward departure from his applicable guideline range. Crawford first

contended that although he made $140,000 from the voucher scheme, he turned

over roughly $200,000 plus the proceeds of the sale of his store to the government. 

Crawford argued that he was thus eligible for a departure based on extraordinary

acceptance of responsibility and extraordinary remorse. Crawford also sought a

departure on three other grounds: (1) lack of criminal sophistication, because he

paid Kelley by easily-traced checks instead of cash; (2) assistance to the
15

government, even though the government did not file a substantial assistance

motion; and (3) that the amount of loss overstated Crawford’s criminality and took

his case outside the heartland of similar cases. Crawford argued that all of these

factors, along with the extraordinary remorse factor, could be combined to justify

an offense level that would allow probation.

The district court granted a downward departure and held that “all of the

grounds taken as a whole warrant a downward departure” because the case fell

“outside the heartland of other such cases.” The district court based its decision

on “ a combination of factors” but emphasized Crawford’s testimony at the

sentencing hearing and Crawford’s donation to the government of the proceeds

from the sale of his business. After the downward departure, Crawford’s guideline

range was 0-6 months, and the district court sentenced Crawford to 60 months’

probation and ordered him to pay $434,032 in restitution.

Several of the grounds relied upon by the district court were impermissible

grounds for a departure in calculating the advisory guideline range. Each of those

errors rested on a misunderstanding of the law. Because the district court relied

upon a “combination of factors” to justify the downward departure, we cannot

presume that the district court would have granted the downward departure in the

absence of those errors. To guide the district court on remand in its calculation of
16

an advisory guideline range, we address each factor in turn.

1. Extraordinary Remorse and Restitution

We have recently held that extraordinary remorse and restitution is a

discouraged but not prohibited ground for a downward departure. Kim, 364 F.3d

at 1240-41. In Kim, we rejected the interpretation proposed by the government

that would have deemed restitution involuntary if it is not done before the

initiation of criminal proceedings. Id. at 1242 n.9, 1243. We instead adopted a

test that considers the degree of voluntariness, the lengths to which the defendant

went to make restitution, the percentage of funds restored, the timing of the

restitution, and whether the defendant’s motive showed sincere remorse and

acceptance of responsibility. Id. at 1244-45.

The district court did not have the benefit of the Kim decision when it made

its ruling that granted the downward departure. Although the district court was

permitted to apply a departure for extraordinary remorse in some circumstances,

the record does not allow us to speculate as to how the district court would have

weighed all of the Kim factors. On remand, the district court must apply the Kim

test when it considers, in its calculation of an advisory guideline range, whether to

apply a downward departure based on this factor.

2. Lack of Criminal Sophistication
17

Section 2F1.1 of the Guidelines contains a two-level specific offense level

characteristic for offenses committed using extraordinary means. That

enhancement penalizes the use of sophisticated means, not the use of

unsophisticated means. See United States v. Schlaen, 300 F.3d 1313, 1319 (11th

Cir. 2002), cert. denied, 540 U.S. 853, 124 S. Ct. 140 (2003). A defendant who

uses unsophisticated means is not to be rewarded for lack of imagination, but

instead avoids the enhancement. Id. Lack of criminal sophistication is not a

permissible ground for a downward departure in calculating an advisory guideline

range.

3. Substantial Assistance to the Government

The Guidelines allow for a downward departure “[u]pon motion of the

government” if the defendant provided substantial assistance to the government. 

U.S.S.G. § 5K1.1. A sentencing court cannot depart from an advisory guideline

range absent a motion from the government. United States v. Forney, 9 F.3d 1492,

1499 (11th Cir. 1993). Because the government did not file a substantial

assistance motion, any assistance Crawford might have provided the government

was not a permissible ground for a downward departure in calculating an advisory

guideline range.

4. Loss Amount Overstated Criminality
18

The commentary to the Guidelines provides that, in a few instances, the

amount of loss calculated under the Guidelines may overstate the seriousness of

the offense. U.S.S.G. § 2F1.1 cmt. n.11. If so, a downward departure can be

applied. Id. The example given is when a defendant attempts to pass a negotiable

instrument so obviously fraudulent that no one would seriously consider honoring

it. Id. The example suggests that this departure typically applies in cases where

there is no meaningful chance that the attempted crime would have succeeded to

the extent indicated by the stated loss. See, e.g., United States v. LeRose, 219

F.3d 335, 339 (4th Cir. 2000).

Unlike the other factors relied upon by the district court to justify the

downward departure, the reliance on this factor by the district court was not

necessarily legally erroneous. This factor can be, in some circumstances, a

permissible ground for a downward departure. Because the other downward

departure errors require us to vacate Crawford’s sentence, we do not decide

whether the district court justifiably relied on this factor. We note, however, that

the amount of loss appears proportionate to the criminal acts committed by

Crawford. Cf. id.

5. Summary

The district court committed several legal errors in its decision that a
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downward departure was warranted. We cannot presume that, in the absence of

those errors, the district court would have decided that a downward departure was

warranted in calculating an advisory guideline range. We remand this case to

allow the district court to revisit the downward departure issue under the correct

legal standards.

IV. CONCLUSION

The district court clearly erred when it refused to apply the more than

minimal planning enhancement. The district court also made several errors in its

interpretation of the Guidelines that led to the downward departure. Because

district courts are required under Booker to consult the Guidelines, and because

true consultation cannot be based on an erroneous understanding of the

Guidelines, the district court erred in failing to consult properly the Guidelines. 

We, therefore, vacate Crawford’s sentence and remand this case to the district

court for resentencing. On remand, the district court must calculate an advisory

guideline range that includes the more than minimal planning enhancement and

considers whether to grant a downward departure from that advisory guideline

range consistent with this opinion. 

VACATED AND REMANDED.
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EDMONDSON, Chief Judge, concurs in the result that the sentence should

be vacated and the case remanded for resentencing.