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. e du/thir dc ir c uit_2000/165Filed August 14, 2000

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Nos. 99-1682, 99-1683

UNITED STATES OF AMERICA

v.

DWAYNE STEVENS,

Appellant

ON APPEAL FROM THE

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Criminal Nos. 97-625-02 and 99-165-01) District Judge: Honorable Ronald J. Buckwalter

Argued March 9, 2000

Before BECKER, Chief Judge, NYGAARD and GARWOOD,* Circuit Judges.

(Filed: August 14, 2000)

___________________________________________________ ______________ * Honorable Will L. Garwood, United States Circuit Judge for the Fifth Circuit, sitting by designation.Sylvia A. Russianoff

Assistant Federal Defender Johnathan D. Libby (argued) David L. McColgin Assistant Federal Defender, Supervising Appellate Attorney Maureen Kearney Rowley
Chief Federal Defender
Federal Court Division Defender Association of Philadelphia Lafayette Building, Suite 800

437 Chestnut Street Philadelphia, PA 19106-2414 Counsel for Appellant

Joseph R. Biden, III (argued) Assistant U.S. Attorney
Michael R. Stiles U.S. Attorney Walter S. Batty, Sr. Assistant U.S. Attorney Chief Of Appeals

615 Chestnut Street
Suite 1250 Philadelphia, PA 19106 Counsel for Appellee

OPINION OF THE COURT

GARWOOD, Circuit Judge:

Defendant-appellant Dwayne Stevens (Stevens) pleade d guilty to an indictment charging him with one count of carjacking, in violation of 18 U.S.C. S 2119, and o ne count of carrying a firearm during the commission of a vi olent crime, in violation of 18 U.S.C. S 924(c). Subseque ntly, Stevens pleaded guilty to an information charging a nother, separate carjacking offense. At a consolidated proc eeding,
the district court sentenced Stevens to 130 months' imprisonment for the indicted carjacking offense, f ollowed by a minimum mandatory consecutive term of 120 mont hs' imprisonment for the firearms offense, and also sen tenced

2him to 120 months' for the other carjacking offense , to be

served concurrently with the other sentence. Steven s now appeals both of his sentences. We affirm.

Facts and Proceedings Below

Stevens committed two separate carjacking offenses on February 6, 1997, and February 11, 1997. Regarding the February 11, 1997 offense, Stevens was indicted on November 20, 1997 in United States District Court f or the Eastern District of Pennsylvania for one count of carjacking, in violation of 18 U.S.C. S 2119, and o ne count of carrying a firearm while committing a violent cr ime, in violation of 18 U.S.C. S 924(c). Pursuant to a plea agreement, he pleaded guilty to both counts on Febr uary 2, 1998. Regarding the February 6, 1997 offense, Steve ns was charged by information on March 26, 1999 with anoth er count of carjacking, to which he pleaded guilty (wa iving indictment) on May 18, 1999. The two cases were consolidated for sentencing.

The district court sentenced Stevens on August 24, 1999. Regarding the indictment for the February 11, 1997 offense, the district court sentenced Stevens to a term of 130 months' imprisonment for the carjacking count a nd a mandatory consecutive term of 120 months' imprisonm ent for the firearm count, to be followed by a three-ye ar term of supervised release. Regarding the information for t he February 6, 1997 offense, the district court senten ced Stevens to 120 months' imprisonment and three years of supervised release, to be served concurrently with his other sentence. The district court also ordered a $100 sp ecial assessment fee. Final judgment was entered on Augus t 25, 1999, and Stevens filed his notice of appeal for bo th sentences on September 1, 1999. The two appeals wer e consolidated on September 30, 1999.

Discussion

On appeal, Stevens argues that the district court e rred in failing to "verify" whether he had read and discuss ed the presentence investigation report (PSR) with his att orney, in denying his request for a downward departure, and i n calculating his sentence. Finding no merit to his arguments, we now affirm.

3I. Rule 32's "Verification" Requirement

FED. R. CRIM. P. 32(c)(3)(A) requires that before i mposing sentence, a district court must "verify that the de fendant
and defendant's counsel have read and discussed the presentence report."1 This Court has declined to in terpret Rule 32 as creating "an absolute requirement that t he court personally ask the defendant if he has had the oppo rtunity to read the report and discuss it with counsel." Un ited States v. Mays, 789 F.2d 78, 79 (3d Cir. 1986). Ins tead, we
have allowed for a more functional fulfillment of t he rule, requiring only that the district court "somehow det ermine that the defendant has had this opportunity." Id. a t 80.2

In the present case, it appears that the district c ourt fell short of even this mark. At sentencing, the distric t court made the following remarks:

This is the time set for sentencing in the matter of United States v. Dwayne Stevens in connectio n with

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1. This requirement originally appeared as FED. R. CRIM. P. 32(a)(1)(A), which provided that before sentencing, the court"sh all (A) determine

that the defendant and the defendant's counsel have had the opportunity to read and discuss the . . . report." In 1994, Rul e 32 was amended and reorganized into its present form. Most of this Cou rt's cases considered the pre-1994 language of Rule 32, but for purposes of this appeal, the changes are quite minor and those cases retain thei r relevance.

2. The Mays court noted that the drafters of Rule 3 2 explicitly imposed on district courts the requirement of conducting a direct colloquy with the defendant elsewhere in the Rule, specifically i n subsection (a)(1)(C), now (c)(3)(C). This subsection requires a district court, before imposing sentence, to "address the defendant personally and determine whether the defendant wishes to make a statement and to pre sent any information in mitigation of the sentence." The May s court reasoned that the drafters could have imposed a similar requireme nt on a court for its
determination about whether the defendant had read and discussed the PSR with his attorney, but had not. Accordingly, th e court declined to impute such a requirement into the provision at iss ue here. See Mays, 798 F.2d at 80. In reaching this conclusion, the Ma ys court disagreed with the Seventh Circuit, which had construed Rule 32 to impose an affirmative duty on the part of the sentencing cour t to address the defendant directly on the question of his having re ad and discussed the PSR with counsel. See United States v. Rone, 743 F. 2d 1169, 1174 (7th Cir. 1984).

4charges filed in this court to Docket Number s 97-625

and 99-6 -- 99-165. A presentence investigat ion has been done with respect to the charges and th ose respective informations or indictments and t hat presentence investigation included that the total
offense level here was 27 and criminal histo ry category was six, and that therefore the guideline pr ovisions were 130 to 162 months. And, there is, of co urse, the mandatory consecutive term on Docket 97-625 of ten years. Are there any requests for additions or corrections to the presentence?"

We have no doubt that the omission by the able tria l judge was inadvertent and doubtless a lapse from his usua l practice. At all events, the statement does not mee t Rule 32's mandate that the court "verify," in one way or another,
that the defendant has read and discussed the PSR w ith his attorney. In fact, the government concedes that the district court failed to satisfy this requirement. Stevens contends that the district court's noncompliance wi th Rule 32(c)(3)(A) constitutes reversible error and that t his Court
should vacate his sentence and remand for resentenc ing. Because Stevens did not bring this matter to the di strict court's attention, the applicable standard of revie w is that of "plain error," as Stevens concedes. See FED. R. CRIM. P. 52(b); United States v. Dozier, 119 F.3d 239, 244 ( 3d Cir. 1997).

Under the plain error standard of Rule 52(b),3 this Court may vacate and remand Stevens's sentence only if we find that (1) an error was committed; (2) the error was plain; and (3) the error affected Stevens's substantial ri ghts. See United States v. Olano, 113 S.Ct. 1770, 1777-78 (19 93). In most cases, the language about affecting substantia l rights "means that the error must have been prejudcial," t hat is, "[i]t must have affected the outcome of the distric t court proceedings." Id. at 1778. If a forfeited error is "plain" and "affect[s] substantial rights," a Court of Appeals "has the authority to order correction, but is not required to do so."

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3. FED. R. CRIM. P. 52(b) provides that "[p]lain er rors or defects affecting substantial rights may be noticed although they wer e not brought to the
attention of the court."

5Id. The Court should exercise its discretion to ord er such a

correction only if the error "seriously affect[s] t he fairness, integrity, or public reputation of judicial proceed ings." Id. at

1776.

As the error was "plain," our next inquiry must be whether it affected Stevens's "substantial rights." No published opinion of this Court has yet addressed t his question. The Fourth, Sixth, Seventh, Ninth, and Te nth Circuits have all considered the issue, however, an d have found, under either a "plain error" or "harmless er ror" analysis,4 that a district court's failure to compl y with the dictates of Rule 32(c)(3)(A) (or its earlier counte rpart) does not require vacatur and remand if the defendant can not demonstrate that he suffered prejudice from the dis trict court's error. See United States v. Lockhart, 58 F. 3d 86, 89 (4th Cir. 1995) (applying plain error analysis to h old that when defendant pointed to no portion of the PSR tha t he would have challenged had the district court conduc ted an express inquiry, he did not show prejudice and vaca tur and remand were not warranted); United States v. Steven s, 851 F.2d 140, 144 & n.7 (6th Cir. 1988) (finding no pre judice
from district court's failure to address defendant directly about an allegedly inaccurate PSR because the court did not rely on any incorrect information in the PSR, a nd refusing to vacate and remand); United States v. Ro driguezLuna, 937 F.2d 1208, 1213 (7th Cir. 1991) (declinin g to
vacate and remand when defendant could not show prejudice from district court's failure to conduct express inquiry about the PSR); United States v. Davila-Esc ovedo, 46 F.3d 840, 844 (9th cir. 1994) (applying harmless error analysis, without addressing plain error, to deny

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4. The primary difference between the two standards of review is that under plain error review, the defendant rather than the government bears the burden of persuasion with respect to prej udice. See Olano, 113 S.Ct. at 1778 ("In most cases, a court of appeals c annot correct the
forfeited error unless the defendant shows that the error was prejudicial."). Moreover, under plain error review, even if the Court of Appeals concludes that substantial rights were affe cted, although it "has the authority to order correction" it "is not requi red to do so," id., and
it should do so only if the error "seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings." Id. at 1776.

6defendant's request for resentencing when defendant made

no claim of prejudice from the district court's Rul e 32 violation); United States v. Rangel-Arreola, 991 F. 2d 1519, 1526 & n.5 (10th Cir. 1993) ("While we recognize presentence reports are critical to sentencing and fairness requires the defendant be given the opportunity to read the report and discuss it with counsel, we will not rem and for resentencing without some showing of prejudice by t he defendant. To remand when no prejudice exists is to require the district court to undergo an exercise i n futility in order to obtain the same sentence.").

The record reflects that the PSR was sent both to S tevens personally and to his counsel, and that thereafter and prior to sentencing defense counsel filed a memorandum wi th the court discussing the PSR, and noting with respe ct to its recital of Stevens's past criminal convictions that "Mr. Stevens does not deny his involvement in this condu ct." Similarly, at sentencing defense counsel discussed the PSR's description of Stevens's prior offenses and s tated "Mr. Stevens does not dispute the fact that he was invol ved in that conduct or that he pled guilty to those." Neit her Stevens's original nor his reply brief asserts that either
Stevens or his counsel did not receive and read the PSR or did not discuss it together; nor does Stevens there in raise any claim of prejudice or assert any inaccuracy in the PSR. Nor does anything in the record suggest otherwise. Stevens merely contends that the district court's error was "equivalent to a structural defect" in the sentenci ng process, affected his substantial rights per se , a nd therefore requires automatic vacatur and remand. Wefind this
contention meritless.

At oral argument Stevens's counsel continued to predicate his Rule 32 contention on the basis of as serted
structural defect. Nor did he assert that Stevens h ad not
read the PSR or had not discussed it with counsel. He conceded that Stevens did not deny involvement in t he prior criminal offenses listed in the PSR. However, under questioning by the court, counsel did assert that S tevens
had not read the entire PSR and had not discussed t he
entire PSR with counsel. Counsel also asserted that the PSR erroneously failed to indicate that a co-perpet rator was

7involved in one of the instant offenses, that Steve ns did not

knowingly waive counsel in one of his prior retail theft convictions, and that the PSR erroneously stated he had struck the victim in a prior conviction for robbery and burglary (the latter two contentions are difficult to reconcile
with counsel's above noted statements to the distri ct court at and before sentencing). Since these contentions were not raised on brief (nor below), they are waived. See, e.g., In Re Trans World Airlines, Inc., 145 F.3d 124, 133 (3d C ir. 1998); Nagle v. Alspach, 8 F.3d 141, 143 (3d Cir. 1993). I n any event, no prejudice is shown. Stevens was sentenced at the very bottom of the applicable guideline range. None of the
matters mentioned could have affected Stevens's cri minal history category (although the retail theft convict ion matter could have reduced his criminal history points by o ne) or the applicable guideline range, and, considering th e record as a whole, it is clear that even if all these matt ers were resolved in Stevens's favor there is no reasonable likelihood
that the sentence would have been different.

The Supreme Court has distinguished between two typ es of constitutional error that occur at both trial an d sentencing: "trial errors," which are subject to constitutional harmless error analysis, and "struct ural defects," which require automatic reversal or vacat ur. See Arizona v. Fulminante, 111 S.Ct. 1246, 1264-65 (199 1); United States v. Pavelko, 992 F.2d 32, 35 (3d Cir. 1993). Structural defects "defy analysis by harmless error ' standards," Fulminante, 111 S.Ct. at 1265, because they "infect the entire trial process," Brecht v. Abraha mson, 113 S.Ct. 1710, 1717 (1993). Without certain "basic protections" such as the right to counsel or an unb iased judge, "a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence, .. . and no criminal punishment may be regarded as fundamentall y fair." Rose v. Clark, 106 S.Ct. 3101, 3106 (1986) ( internal citations omitted); see also Chapman v. California, 87 S.Ct. 824, 827-28 & n.8 (1967) (observing that some
constitutional minimums are "so basic to a fair tri al that [their] infraction can never be treated as harmless error").

"The list of errors that are structural in quality is a limited one," West v. Vaughn, 204 F.3d 53, 60 n.7 ( 3d Cir.

82000), and includes complete denial of counsel, bia sed

judges, racial discrimination in selection of grand jury, denial of self-representation at trial, denial of p ublic trial, and seriously defective reasonable doubt instructio n, see Neder v. United States, 119 S.Ct. 1827, 1833 (1999) (listing cases). See also United States v. Mortimer, 161 F.3 d 240, 241-42 (3d Cir. 1998) (finding structural defect in judge's unexplained absence from the courtroom during defen se counsel's closing argument); Henderson v. Frank , 1 55 F.3d 159, 170 (3d Cir. 1998) (deprivation of right to co unsel at suppression hearing constituted structural defect). Structural errors at sentencing include deprivation of counsel during the sentencing hearing itself, see U nited States v. Salemo, 61 F.3d 214, 221-22 (3d Cir. 1995 ), abdication of judicial role by authorizing a probat ion officer to determine the manner of restitution, see United States v. Mohammad, 53 F.3d 1426, 1438-39 (7th Cir. 1995), an d in absentia sentencing, see Hayes v. Arave, 977 F.2d 4 75, 479-80 (9th Cir. 1992). "Stevens invites this Court to add to this "very limited class of cases," Johnson v. Unit ed States, 117 S.Ct. 1544, 1549 (1997), noncompliance with Rul e 32(c)(3)(A)'s verification requirement. We must dec line his invitation. First, it is indisputable that a violat ion of Rule 32(c)(3)(A) is nonconstitutional error, which gener ally cannot
amount to a structural defect. See United States v. Quintero, 38 F.3d 1317, 1331 (3d Cir. 1994) (findin g violation of statutory right nonconstitutional erro r).5 Second, we do not consider this error a structural defect because the district court's failure to verify whet her Stevens
had read and discussed the PSR with counsel does no t "necessarily render [the sentencing process] unfair ." Rose, 106 S.Ct. at 3106 (emphasis added). At sentencing, Stevens was represented by counsel before an impartial judg e; in

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5. Nonconstitutional error is harmless when "it is highly probable that the error did not contribute to the judgment." Unit ed States v. Dispoz-OPlastics, Inc., 172 F.3d 275, 286 (3d Cir. 1999) (q uoting Government of Virgin Islands v. Toto, 529 F.2d 278, 284 (3d Cir. 1976)); see also Kotteakos v. United States, 66 S.Ct. 1239, 1248 (19 46) (when reviewing nonconstitutional errors on direct appeal, convicti on or sentence will only be set aside if "the error itself had substant ial influence" on the outcome). Accordingly, without any showing of preju dice, nonconstitutional error will usually be deemed harm less.

9the presence of both these protections, we recogniz e a

"strong presumption" against finding any other erro rs to be
structural defects. See id. The district court's noncompliance with Rule 32(c)(3)(A) did not infect" each and every aspect" of Stevens's sentencing, but rath er only
the determination of the extent of Stevens's famili arity with the PSR. Cf. Hays, 977 F.2d at 479. Stevens was sti ll able to make any and all objections to the PSR, as well as the government's arguments, and had the opportunity to address the court before sentencing. The impact, if any, of this error--and as noted above, Stevens makes no competent allegation of inaccuracy in the PSR, or t hat he
never read it6--was localized and did not exhibit t he same "pervasive" effect as the structural errors that th is Court and others courts have recognized. See id.

Our conclusion finds support in two of this Court's recent opinions, United States v. Faulks, 201 F.3d 208 (3d Cir. 2000), and United States v. Beckett, 208 F.3d 140 (3d Cir. 2000). In Faulks, the district court violated FED. R. CRIM. P. 43(a) by resentencing Faulks by written ju dgment only, instead of orally and in Faulks's presence. T his Court held that this error required automatic vacatur and resentencing because a defendant's right to be "eye ball[ed]" by the sentencing judge was "not a meaningless form ality" but rather a "fundamental procedural guarantee that places the defendant before the judge at a culminating mom ent of the criminal judicial process." Faulks, 201 F.3d at 209, 211. This protection, the Faulks court found, was " deeply
rooted" in the Confrontation Clause of the Sixth Amendment. See id. at 211. Stevens has not alleged a Rule 43(a) violation and has not provided anything beyon d his own unfounded assertions to demonstrate the "specia l importance" of the district court's error that woul d render it a structural defect in the sentencing process. I d. The Faulks court observed that the requirement that the

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6. Moreover, without some showing that his attorney actually failed to discuss the PSR with Stevens, we will not presume t hat counsel acted negligently or otherwise provided ineffective assis tance. See Strickland

v. Washington, 104 S.Ct. 2052, 2065 (1984) ("[A] court must indulge a strong presumption that counsel's conduct falls wit hin the wide range of reasonable professional assistance.").

10defendant be present at both sentencing and resente ncing

was "the embodiment of a value deeply embedded in o ur polity (and our jurisprudence)." Id. at 209. While no one disputes the importance of the defendant's understa nding the PSR, which is "the critical document not only i n the sentencing process, but also in the deliberations o f the Parole Commission and the Bureau of Prisons," Mays, 798 F.2d at 80, Rule 32(c)(3)(A)'s verification require ment does not exhibit an even remotely similar "deeply rooted " genealogy.

In Beckett, this Court held that the district court 's failure to provide Beckett his right to allocution on resen tencing did not require vacatur and resentencing because th e district court had departed downward and sentenced Beckett below the applicable guidelines range and B eckett had demonstrated no prejudice. See Beckett, 208 F.3 d at 148 (citing United States v. Lewis, 10 F.3d 1086, 1 092 (4th Cir. 1993)). Discussing the allocution right, the S upreme Court in United States v. Green, 81 S.Ct. 653 (1961 ), held that an earlier version of Rule 32 required that th e defendant himself, and not merely his attorney, hav e an opportunity to address the court before sentencing. See id. at 655. In doing so, the Court traced the roots of the
common law allocution back to the seventeenth centu ry and observed that the need for that right persisted despite the many intervening changes in criminal procedure since that time. See id. ("The most persuasive counsel ma y not be able to speak for a defendant as the defendant migh t, with halting eloquence, speak for himself."). Despite th e importance of this right, the Supreme Court held so on after Green that denial of the allocution right was not c ognizable on federal habeas corpus review because it "is not a fundamental defect which inherently results in a co mplete miscarriage of justice, nor an omission inconsisten t with the rudimentary demands of fair procedure." Hill v. United States, 82 S.Ct. 468, 471 (1962).

By contrast, the requirement that the sentencing co urt verify that the defendant has read and discussed th e PSR with counsel was a point of some controversy and li ttle consensus until 1983, when the drafters of the Rule s of
Criminal Procedure added it to Rule 32. See FED. R. CRIM.

11P. 32 advisory committee's notes (chronicling dispu te over

and eventual adoption of this requirement). We find it significant that a defendant's right to allocution, indisputably more valued and "deeply rooted" than t he verification requirement of Rule 32, nonetheless re mains subject to harmless error analysis and fails to ris e to the level of a structural defect. In light of that fact , as well as the general presumption against expanding the list of structural defects, we are unable to conclude that the
district court's error in this case constituted a s tructural defect. Accordingly, we join the Fourth, Sixth, Sev enth, Ninth, and Tenth Circuits in holding that noncompli ance with Rule 32(c)(3)(A) does not require vacatur and resentencing without at least some showing of preju dice by the defendant. See Lockhart, 58 F.3d at 89; Stevens , 851 F.2d at 144 & n.7; Rodriguez-Luna, 937 F.2d at 1213 ; Davila-Escovedo, 46 F.3d at 844; Rangel-Arreola, 99 1 F.2d

at 1526 & n.5.

As the Mays Court noted, district court errors like this one are regrettable and easily avoidable, and we ex hort district courts to engage in the "simple practice" of addressing defendants directly to ensure they have read and discussed the PSR with counsel. See Mays, 798 F .2d at 80. Nevertheless, we cannot agree that this type of error constitutes a structural defect in the sentencing p rocess. In the absence of any showing of prejudice or the deni al of substantial rights caused by this error, Stevens's claim
must fail.

II. Refusal to Depart Downward

In his second point on appeal, Stevens argues that the district court erred in denying his request for a d ownward departure. At his sentencing hearing, Stevens moved for a downward departure on three separate grounds: (1) Stevens's criminal history category of VI significa ntly overrepresented the severity of his criminal histor y; (2) Stevens's post-offense rehabilitation, including th e completion of religious and relationship-oriented c ourses, warranted downward departure; and (3) that a "combination of factors," including the fact that S tevens spent a significant amount of time in county jail f acilities in New Jersey and Pennsylvania while awaiting his sent encing

12hearing, warranted a downward departure.7 Regardin g the

third basis for departure, Stevens contended that t he length of his incarceration in these county jails and the allegedly substandard conditions there were "mitigating circumstances" not taken into consideration by the United States Sentencing Commission that militated in favo r of departure pursuant to U.S.S.G. S 5K2.0.8 At the sen tencing hearing, the court made the following remarks:

"Before I talk to Mr. Stevens, I think that having reviewed the presentence investigation and h aving had
the benefit of defense counsel's memorandum with regard to the guideline--criminal history ca tegory, I think that on balance it probably does not o ver- emphasize his criminal record. And, these re tail thefts were within a short span of time. There were a number of them, three of them, in fact. And, I thin k the range here of criminal six is appropriate based up on the presentence investigation and his prior reco rd, so I won't change that.

With regard to any other downward departures , the Court finds that there isn't a significant e nough-- although the Court feels it has the authorit y to grant a departure here, the Bible studies and other studies the defendant has engaged in are admirable, and studies I think someone facing what he is facing would in fact

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7. Evidently, Stevens had been shuttled between var ious county jails while awaiting sentencing. He spent 35 days in Merc er County, New Jersey, 75 days in Lehigh County, Pennsylvania, and 132 days in Passaic County, New Jersey.

8. U.S.S.G. S 5K2.0 provides in relevant part:

"[T]he sentencing court may impose a sentence outsi de the range established by the applicable guidelines, if the co urt finds that there exists 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 that shoul d result in a
sentence different from that described.' . . . The decision as to whether and to what extent departure is warranted rests wit h the sentencing court on a case-specific basis . . . . Presence of any such factor may warrant departure from the guidelines, under some c ircumstances, in the discretion of the sentencing court."

13do and participate in. As to the incarcerati on factor,

which Counsel brought up, while the Court re cognizes that conditions in county prisons might not be as
conducive to and indeed aren't as conducive to getting certain kinds of programs to him, I don't th ink what has been represented to the Court here is th e type of incarceration that would warrant any conside ration on the guidelines for departure."

Stevens concedes, as he must, that in denying the m otion on the first two grounds, the district court clearl y stated that it had the authority to grant a departure on t hese grounds but chose not to do so. He maintains, howev er, that in considering the third basis for departing, the "combination of factors" regarding his presentence incarceration, the district court did not make clea r whether it was denying the departure on legal or discretion ary grounds.

This Court's jurisdiction to consider Stevens's arg ument depends on the basis for the district court's rulin g. See United States v. Denardi, 891 F.2d 269, 271-72 (3d Cir. 1989). If the ruling was based on the district cour t's belief that a departure on the grounds proffered by the de fendant was legally impermissible, we have jurisdiction to determine whether the district court's understanding of the l aw was correct. See United States v. Mummert, 34 F.3d 201, 205 (3d Cir. 1994). "By contrast, if the district court 's ruling was based on an exercise of discretion, we lack jurisdiction." Id. If the district court's stated r easons are ambiguous--so that the record does not reflect whet her the court's denial is based on legal or discretionary g rounds-- then the proper remedy is to "vacate the sentence a nd remand for the district court to clarify the basis for its ruling." Id.; see also United States v. Evans, 49 F .3d 109, 112 (3d Cir. 1995).

We find that the district court's comments were not sufficiently ambiguous as to require vacatur and re mand. At the outset of the second paragraph, the court se t out to discuss "any other downward departures." It then acknowledged that it had the authority to grant a d eparture on the basis of these factors, which were post-offe nse rehabilitation and "the incarceration factor." Rega rding

14Stevens's post-offense rehabilitation activities, s uch as his

Bible study classes, the district court found them
admirable but not sufficient to warrant a downward departure. This was clearly a discretionary decisio n. Assuming arguendo that the condition of Stevens's p retrial confinement is a permissible basis for downward dep arture,9 it is similarly clear that the district court's den ial of Stevens's request on this basis was also discretion ary. When the district court stated "although the Court feels it has the authority to grant a departure here" we thi nk it was referring to all of the "other downward departures" sought by Stevens, and not just the one referable to the B ible studies, which is the next item that the Court took up. Under these circumstances, when the district court stated that "I don't think what has been represented to th e court here is the type of incarceration that would warran t any consideration on the guidelines for departure," the Court was not stating that it had no legal authority to g rant a departure based on the conditions of Stevens's pret rial confinement, but rather that Stevens had not persua ded the court that a departure was appropriate in his c ase. This
was an exercise of discretion and therefore unrevie wable. See Mummert, 34 F.3d at 205.

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9. While there has been some contention among the d istrict courts of this Circuit over the propriety and wisdom of consi dering the conditions of confinement as a basis for downward departures, several decisions indicate that granting a departure on this ground"i s not categorically foreclosed." United States v. Ogembe, 41 F. Supp.2d 567, 571 (E.D. Pa. 1999); see also United States v. Pacheco, 67 F. Sup p.2d 495, 498 (E.D. Pa. 1999) ("While exceptionally hard conditions of confinement might qualify for a departure . . . , a defendant must de monstrate to the court that the conditions compare unfavorably to those su ffered by other inmates.") (internal citations omitted); United Sta tes v. Miranda, 979 F. Supp. 1040, 1044-45 (D.N.J. 1997), appeal dismissed , 159 F.3d 1354 (3d Cir. 1998) (denying downward departure based on conditions of pretrial confinement as record was "too sparse" to demonstrate that the conditions were "sufficiently deplorable" ); United States v. Sutton, 973

F. Supp. 488, 493 (D.N.J. 1997), aff 'd, 156 F.3d 1226 (3d Cir. 1998) ("Unusual pretrial confinement . . . in either leng th or severity of condition, can properly be considered by the senten cing court.") We do not decide the question of whether confinement cond itions constitute a permissible basis for downward departure.

15III. Sentence Calculation

In a separate pro se brief, Stevens claims that whe n calculating his sentence for the February 11, 1997 carjacking offense, the district court improperly i mposed a
five-level enhancement based on the offense charact eristic of "brandishing" a firearm, pursuant to U.S.S.G. S 2B3.1(b)(2)(C). While this enhancement would norm ally have applied to this carjacking offense, because St evens also received a mandatory minimum ten-year concurre nt sentence for carrying a firearm, under 18 U.S.C.S 9 24(c), the enhancement did not apply to the February 11 carjacking. See U.S.S.G. S 2K2.4, App. Note 2.10 Ho wever, as reflected by the PSR, Stevens's sentence fully c omplied with the guidelines: pursuant to section 2K2.4, the "brandishing" enhancement was specifically not appl ied to Stevens's sentence for the February 11, 1997 offens e.11 The enhancement was applied, however, to Stevens's sent ence for his February 6, 1997 carjacking offense, respec ting which he was not charged with a firearms violation. Applying the five-level enhancement to his sentence for the February 6, 1997 carjacking was entirely proper. 12

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10. U.S.S.G. S 2K2.4, Application Note 2, provides in relevant part:

"Where a sentence under this section is imp osed in conjunction with a sentence for an underlying offense, a ny specific
characteristic for the possession, use, or discharge of an explosive or firearm .

. . is not to be applied in respect to the guide line for the underlying

offense."

The Background Note states:

"18 U.S.C. SS 844(h), 924(c), and 929(a) pr ovide mandatory minimum penalties for the conduct proscribed . To avoid double counting, when a sentence under this section is imposed in conjunction with a sentence for an underlyin g offense, any specific offense characteristic for explosive or fire arm discharge, use, or possession is not applied in respect to such underlying offense." 11. Regarding the February 11, 1997 offense, Steven s did receive a fourlevel enhancement for abducting his victims, pursua nt to U.S.S.G. S 2B3.1(b)(4), and a two-level enhancement for comm itting an offense that involved carjacking, pursuant to U.S.S.G. S 2B 3.1(b)(5).

12. Regarding the February 6, 1997 offense, Stevens received the twolevel carjacking enhancement, as well as a one-leve l enhancement for committing an offense that involved a loss (actual or intended) of more than $10,000, pursuant to U.S.S.G. S 2B3.1(b)(7).16Conclusion

Stevens's sentences are

AFFIRMED.

A True Copy:

Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

17