2000 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-14-2000

United States v. Stevens

Precedential or Non-Precedential:

Docket 99-1682 & 99-1683

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Recommended Citation

"United States v. Stevens" (2000). 2000 Decisions. Paper 165.

http://digitalcommons.law.villanova.edu/thirdcircuit_2000/165
Filed 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) pleaded 

guilty to an indictment charging him with one count of 

carjacking, in violation of 18 U.S.C. S 2119, and one count 

of carrying a firearm during the commission of a violent 

crime, in violation of 18 U.S.C. S 924(c). Subsequently, 

Stevens pleaded guilty to an information charging another, 

separate carjacking offense. At a consolidated proceeding, 

the district court sentenced Stevens to 130 months'

imprisonment for the indicted carjacking offense, followed 

by a minimum mandatory consecutive term of 120 months' 

imprisonment for the firearms offense, and also sentenced 

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

served concurrently with the other sentence. Stevens 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 for the 

Eastern District of Pennsylvania for one count of 

carjacking, in violation of 18 U.S.C. S 2119, and one count 

of carrying a firearm while committing a violent crime, in 

violation of 18 U.S.C. S 924(c). Pursuant to a plea

agreement, he pleaded guilty to both counts on February 2, 

1998. Regarding the February 6, 1997 offense, Stevens was 

charged by information on March 26, 1999 with another 

count of carjacking, to which he pleaded guilty (waiving 

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 and a 

mandatory consecutive term of 120 months' imprisonment 

for the firearm count, to be followed by a three-year term of 

supervised release. Regarding the information for the 

February 6, 1997 offense, the district court sentenced 

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 special 

assessment fee. Final judgment was entered on August 25, 

1999, and Stevens filed his notice of appeal for both 

sentences on September 1, 1999. The two appeals were 

consolidated on September 30, 1999. 

Discussion 

On appeal, Stevens argues that the district court erred in 

failing to "verify" whether he had read and discussed the 

presentence investigation report (PSR) with his attorney, in 

denying his request for a downward departure, and in 

calculating his sentence. Finding no merit to his 

arguments, we now affirm. 

 3 
I. Rule 32's "Verification" Requirement 

FED. R. CRIM. P. 32(c)(3)(A) requires that before imposing 

sentence, a district court must "verify that the defendant 

and defendant's counsel have read and discussed the

presentence report."1 This Court has declined to interpret 

Rule 32 as creating "an absolute requirement that the court 

personally ask the defendant if he has had the opportunity 

to read the report and discuss it with counsel." United 

States v. Mays, 789 F.2d 78, 79 (3d Cir. 1986). Instead, we 

have allowed for a more functional fulfillment of the rule, 

requiring only that the district court "somehow determine 

that the defendant has had this opportunity." Id. at 80.2 

In the present case, it appears that the district court fell 

short of even this mark. At sentencing, the district court 

made the following remarks: 

 This is the time set for sentencing in the matter of 

 United States v. Dwayne Stevens in connection with 

_________________________________________________________________ 

1. This requirement originally appeared as FED. R. CRIM. P. 32(a)(1)(A), 

which provided that before sentencing, the court"shall (A) determine 

that the defendant and the defendant's counsel have had the opportunity 

to read and discuss the . . . report." In 1994, Rule 32 was amended and 

reorganized into its present form. Most of this Court'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 their relevance. 

2. The Mays court noted that the drafters of Rule 32 explicitly imposed 

on district courts the requirement of conducting a direct colloquy with 

the defendant elsewhere in the Rule, specifically in 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 present any 

information in mitigation of the sentence." The Mays court reasoned that 

the drafters could have imposed a similar requirement on a court for its 

determination about whether the defendant had read and discussed the 

PSR with his attorney, but had not. Accordingly, the court declined to 

impute such a requirement into the provision at issue here. See Mays, 

798 F.2d at 80. In reaching this conclusion, the Mays court disagreed 

with the Seventh Circuit, which had construed Rule 32 to impose an 

affirmative duty on the part of the sentencing court to address the 

defendant directly on the question of his having read and discussed the 

PSR with counsel. See United States v. Rone, 743 F.2d 1169, 1174 (7th 

Cir. 1984). 

 4 
 charges filed in this court to Docket Numbers 97-625 

 and 99-6 -- 99-165. A presentence investigation has 

 been done with respect to the charges and those 

 respective informations or indictments and that 

 presentence investigation included that the total 

 offense level here was 27 and criminal history category 

 was six, and that therefore the guideline provisions 

 were 130 to 162 months. And, there is, of course, 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 trial judge 

was inadvertent and doubtless a lapse from his usual 

practice. At all events, the statement does not meet Rule 

32's mandate that the court "verify," in one way or another, 

that the defendant has read and discussed the PSR with 

his attorney. In fact, the government concedes that the 

district court failed to satisfy this requirement. Stevens 

contends that the district court's noncompliance with Rule 

32(c)(3)(A) constitutes reversible error and that this Court 

should vacate his sentence and remand for resentencing. 

Because Stevens did not bring this matter to the district 

court's attention, the applicable standard of review 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 wefind 

that (1) an error was committed; (2) the error was plain; 

and (3) the error affected Stevens's substantial rights. See 

United States v. Olano, 113 S.Ct. 1770, 1777-78 (1993). In 

most cases, the language about affecting substantial rights 

"means that the error must have been prejudcial," that is, 

"[i]t must have affected the outcome of the district 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." 

_________________________________________________________________ 

3. FED. R. CRIM. P. 52(b) provides that "[p]lain errors or defects 

affecting 

substantial rights may be noticed although they were not brought to the 

attention of the court." 

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

correction only if the error "seriously affect[s] the fairness, 

integrity, or public reputation of judicial proceedings." 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 this 

question. The Fourth, Sixth, Seventh, Ninth, and Tenth 

Circuits have all considered the issue, however, and have 

found, under either a "plain error" or "harmless error" 

analysis,4 that a district court's failure to comply with the 

dictates of Rule 32(c)(3)(A) (or its earlier counterpart) does 

not require vacatur and remand if the defendant cannot 

demonstrate that he suffered prejudice from the district 

court's error. See United States v. Lockhart, 58 F.3d 86, 89 

(4th Cir. 1995) (applying plain error analysis to hold that 

when defendant pointed to no portion of the PSR that he 

would have challenged had the district court conducted an 

express inquiry, he did not show prejudice and vacatur and 

remand were not warranted); United States v. Stevens, 851 

F.2d 140, 144 & n.7 (6th Cir. 1988) (finding no prejudice 

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, and 

refusing to vacate and remand); United States v. RodriguezLuna, 937 F.2d 1208, 1213 (7th Cir. 1991) (declining 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-Escovedo, 

46 F.3d 840, 844 (9th cir. 1994) (applying harmless error 

analysis, without addressing plain error, to deny 

_________________________________________________________________ 

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 prejudice. See Olano, 113 

S.Ct. at 1778 ("In most cases, a court of appeals cannot 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 affected, although it "has 

the authority to order correction" it "is not required 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. 

 6 
defendant's request for resentencing when defendant made 

no claim of prejudice from the district court's Rule 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 remand for 

resentencing without some showing of prejudice by the 

defendant. To remand when no prejudice exists is to

require the district court to undergo an exercise in futility 

in order to obtain the same sentence."). 

The record reflects that the PSR was sent both to Stevens 

personally and to his counsel, and that thereafter and prior 

to sentencing defense counsel filed a memorandum with 

the court discussing the PSR, and noting with respect to its 

recital of Stevens's past criminal convictions that"Mr. 

Stevens does not deny his involvement in this conduct." 

Similarly, at sentencing defense counsel discussed the 

PSR's description of Stevens's prior offenses and stated "Mr. 

Stevens does not dispute the fact that he was involved in 

that conduct or that he pled guilty to those." Neither 

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 therein 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 sentencing 

process, affected his substantial rights per se , and 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 asserted 

structural defect. Nor did he assert that Stevens had not 

read the PSR or had not discussed it with counsel. He 

conceded that Stevens did not deny involvement in the 

prior criminal offenses listed in the PSR. However, under 

questioning by the court, counsel did assert that Stevens 

had not read the entire PSR and had not discussed the 

entire PSR with counsel. Counsel also asserted that the 

PSR erroneously failed to indicate that a co-perpetrator was 

 7 
involved in one of the instant offenses, that Stevens 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 district 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 Cir. 1998); 

Nagle v. Alspach, 8 F.3d 141, 143 (3d Cir. 1993). In 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 criminal 

history category (although the retail theft conviction matter 

could have reduced his criminal history points by one) or 

the applicable guideline range, and, considering the record 

as a whole, it is clear that even if all these matters 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 types 

of constitutional error that occur at both trial and 

sentencing: "trial errors," which are subject to 

constitutional harmless error analysis, and "structural 

defects," which require automatic reversal or vacatur. See 

Arizona v. Fulminante, 111 S.Ct. 1246, 1264-65 (1991); 

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. Abrahamson, 113 

S.Ct. 1710, 1717 (1993). Without certain "basic 

protections" such as the right to counsel or an unbiased 

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 fundamentally 

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 trial 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. 

 8 
2000), and includes complete denial of counsel, biased 

judges, racial discrimination in selection of grand jury, 

denial of self-representation at trial, denial of public trial, 

and seriously defective reasonable doubt instruction, see 

Neder v. United States, 119 S.Ct. 1827, 1833 (1999) (listing 

cases). See also United States v. Mortimer, 161 F.3d 240, 

241-42 (3d Cir. 1998) (finding structural defect in judge's 

unexplained absence from the courtroom during defense 

counsel's closing argument); Henderson v. Frank , 155 F.3d 

159, 170 (3d Cir. 1998) (deprivation of right to counsel at 

suppression hearing constituted structural defect).

Structural errors at sentencing include deprivation of 

counsel during the sentencing hearing itself, see United 

States v. Salemo, 61 F.3d 214, 221-22 (3d Cir. 1995), 

abdication of judicial role by authorizing a probation officer 

to determine the manner of restitution, see United States v. 

Mohammad, 53 F.3d 1426, 1438-39 (7th Cir. 1995), and in 

absentia sentencing, see Hayes v. Arave, 977 F.2d 475, 

479-80 (9th Cir. 1992). "Stevens invites this Court to add to 

this "very limited class of cases," Johnson v. United States, 

117 S.Ct. 1544, 1549 (1997), noncompliance with Rule 

32(c)(3)(A)'s verification requirement. We must decline his 

invitation. First, it is indisputable that a violation of Rule 

32(c)(3)(A) is nonconstitutional error, which generally cannot 

amount to a structural defect. See United States v.

Quintero, 38 F.3d 1317, 1331 (3d Cir. 1994) (finding 

violation of statutory right nonconstitutional error).5 

Second, we do not consider this error a structural defect 

because the district court's failure to verify whether Stevens 

had read and discussed the PSR with counsel does not 

"necessarily render [the sentencing process] unfair." Rose, 

106 S.Ct. at 3106 (emphasis added). At sentencing, Stevens 

was represented by counsel before an impartial judge; in 

_________________________________________________________________ 

5. Nonconstitutional error is harmless when "it is highly probable that 

the error did not contribute to the judgment." United States v. Dispoz-OPlastics, Inc., 172 F.3d 275, 286 (3d Cir. 1999) (quoting 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 (1946) (when reviewing 

nonconstitutional errors on direct appeal, conviction or sentence will 

only be set aside if "the error itself had substantial influence" on the 

outcome). Accordingly, without any showing of prejudice, 

nonconstitutional error will usually be deemed harmless. 

 9 
the presence of both these protections, we recognize a 

"strong presumption" against finding any other errors 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 rather only 

the determination of the extent of Stevens's familiarity with 

the PSR. Cf. Hays, 977 F.2d at 479. Stevens was still 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 that he 

never read it6--was localized and did not exhibit the same 

"pervasive" effect as the structural errors that this 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 judgment 

only, instead of orally and in Faulks's presence. This Court 

held that this error required automatic vacatur and

resentencing because a defendant's right to be "eyeball[ed]" 

by the sentencing judge was "not a meaningless formality" 

but rather a "fundamental procedural guarantee that places 

the defendant before the judge at a culminating moment 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 beyond his 

own unfounded assertions to demonstrate the "special 

importance" of the district court's error that would render 

it a structural defect in the sentencing process. Id. The 

Faulks court observed that the requirement that the

_________________________________________________________________ 

6. Moreover, without some showing that his attorney actually failed to 

discuss the PSR with Stevens, we will not presume that counsel acted 

negligently or otherwise provided ineffective assistance. See Strickland 

v. 

Washington, 104 S.Ct. 2052, 2065 (1984) ("[A] court must indulge a 

strong presumption that counsel's conduct falls within the wide range of 

reasonable professional assistance."). 

 10 
defendant be present at both sentencing and resentencing 

was "the embodiment of a value deeply embedded in our 

polity (and our jurisprudence)." Id. at 209. While no one 

disputes the importance of the defendant's understanding 

the PSR, which is "the critical document not only in the 

sentencing process, but also in the deliberations of the 

Parole Commission and the Bureau of Prisons," Mays, 798 

F.2d at 80, Rule 32(c)(3)(A)'s verification requirement 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 resentencing 

did not require vacatur and resentencing because the 

district court had departed downward and sentenced 

Beckett below the applicable guidelines range and Beckett 

had demonstrated no prejudice. See Beckett, 208 F.3d at 

148 (citing United States v. Lewis, 10 F.3d 1086, 1092 (4th 

Cir. 1993)). Discussing the allocution right, the Supreme 

Court in United States v. Green, 81 S.Ct. 653 (1961), held 

that an earlier version of Rule 32 required that the 

defendant himself, and not merely his attorney, have 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 century 

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 may not be 

able to speak for a defendant as the defendant might, with 

halting eloquence, speak for himself."). Despite the 

importance of this right, the Supreme Court held soon after 

Green that denial of the allocution right was not cognizable 

on federal habeas corpus review because it "is not a 

fundamental defect which inherently results in a complete 

miscarriage of justice, nor an omission inconsistent with 

the rudimentary demands of fair procedure." Hill v. United 

States, 82 S.Ct. 468, 471 (1962). 

By contrast, the requirement that the sentencing court 

verify that the defendant has read and discussed the PSR 

with counsel was a point of some controversy and little 

consensus until 1983, when the drafters of the Rules of 

Criminal Procedure added it to Rule 32. See FED. R. CRIM. 

 11 
P. 32 advisory committee's notes (chronicling dispute 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 the 

verification requirement of Rule 32, nonetheless remains 

subject to harmless error analysis and fails to rise 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 structural 

defect. Accordingly, we join the Fourth, Sixth, Seventh, 

Ninth, and Tenth Circuits in holding that noncompliance 

with Rule 32(c)(3)(A) does not require vacatur and 

resentencing without at least some showing of prejudice 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, 991 F.2d 

at 1526 & n.5. 

As the Mays Court noted, district court errors like this 

one are regrettable and easily avoidable, and we exhort 

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 process. In 

the absence of any showing of prejudice or the denial 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 downward 

departure. At his sentencing hearing, Stevens moved for a 

downward departure on three separate grounds: (1) 

Stevens's criminal history category of VI significantly 

overrepresented the severity of his criminal history; (2) 

Stevens's post-offense rehabilitation, including the 

completion of religious and relationship-oriented courses, 

warranted downward departure; and (3) that a 

"combination of factors," including the fact that Stevens 

spent a significant amount of time in county jail facilities in 

New Jersey and Pennsylvania while awaiting his sentencing 

 12 
hearing, warranted a downward departure.7 Regarding the 

third basis for departure, Stevens contended that the 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 favor of 

departure pursuant to U.S.S.G. S 5K2.0.8 At the sentencing 

hearing, the court made the following remarks: 

 "Before I talk to Mr. Stevens, I think that having 

 reviewed the presentence investigation and having had 

 the benefit of defense counsel's memorandum with 

 regard to the guideline--criminal history category, I 

 think that on balance it probably does not over- 

 emphasize his criminal record. And, these retail thefts 

 were within a short span of time. There were a number 

 of them, three of them, in fact. And, I think the range 

 here of criminal six is appropriate based upon the 

 presentence investigation and his prior record, so I 

 won't change that. 

 With regard to any other downward departures, the 

 Court finds that there isn't a significant enough-- 

 although the Court feels it has the authority 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 

_________________________________________________________________ 

7. Evidently, Stevens had been shuttled between various county jails 

while awaiting sentencing. He spent 35 days in Mercer 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 outside the range 

established by the applicable guidelines, if the court 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 should result in a 

sentence different from that described.' . . . The decision as to whether 

and to what extent departure is warranted rests with the sentencing 

court on a case-specific basis . . . . Presence of any such factor may 

warrant departure from the guidelines, under some circumstances, in 

the discretion of the sentencing court." 

 13 
 do and participate in. As to the incarceration factor, 

 which Counsel brought up, while the Court recognizes 

 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 think what 

 has been represented to the Court here is the type of 

 incarceration that would warrant any consideration on 

 the guidelines for departure." 

Stevens concedes, as he must, that in denying the motion 

on the first two grounds, the district court clearly stated 

that it had the authority to grant a departure on these 

grounds but chose not to do so. He maintains, however, 

that in considering the third basis for departing, the 

"combination of factors" regarding his presentence 

incarceration, the district court did not make clear whether 

it was denying the departure on legal or discretionary 

grounds. 

This Court's jurisdiction to consider Stevens's argument 

depends on the basis for the district court's ruling. See 

United States v. Denardi, 891 F.2d 269, 271-72 (3d Cir. 

1989). If the ruling was based on the district court's belief 

that a departure on the grounds proffered by the defendant 

was legally impermissible, we have jurisdiction to determine 

whether the district court's understanding of the law 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 reasons are 

ambiguous--so that the record does not reflect whether the 

court's denial is based on legal or discretionary grounds-- 

then the proper remedy is to "vacate the sentence and 

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 remand. 

At the outset of the second paragraph, the court set out to 

discuss "any other downward departures." It then 

acknowledged that it had the authority to grant a departure 

on the basis of these factors, which were post-offense 

rehabilitation and "the incarceration factor." Regarding 

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

Bible study classes, the district court found them 

admirable but not sufficient to warrant a downward 

departure. This was clearly a discretionary decision. 

Assuming arguendo that the condition of Stevens's pretrial 

confinement is a permissible basis for downward departure,9 

it is similarly clear that the district court's denial of 

Stevens's request on this basis was also discretionary. 

When the district court stated "although the Court feels it 

has the authority to grant a departure here" we think it was 

referring to all of the "other downward departures" sought 

by Stevens, and not just the one referable to the Bible 

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 the court 

here is the type of incarceration that would warrant any 

consideration on the guidelines for departure," the Court 

was not stating that it had no legal authority to grant a 

departure based on the conditions of Stevens's pretrial 

confinement, but rather that Stevens had not persuaded 

the court that a departure was appropriate in his case. This 

was an exercise of discretion and therefore unreviewable. 

See Mummert, 34 F.3d at 205. 

_________________________________________________________________ 

9. While there has been some contention among the district courts of 

this Circuit over the propriety and wisdom of considering the conditions 

of confinement as a basis for downward departures, several decisions 

indicate that granting a departure on this ground"is 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. Supp.2d 495, 498 (E.D. 

Pa. 1999) ("While exceptionally hard conditions of confinement might 

qualify for a departure . . . , a defendant must demonstrate to the court 

that the conditions compare unfavorably to those suffered by other 

inmates.") (internal citations omitted); United States 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 length or severity of 

condition, can properly be considered by the sentencing court.") We do 

not decide the question of whether confinement conditions constitute a 

permissible basis for downward departure. 

 15 
III. Sentence Calculation 

In a separate pro se brief, Stevens claims that when 

calculating his sentence for the February 11, 1997 

carjacking offense, the district court improperly imposed a 

five-level enhancement based on the offense characteristic 

of "brandishing" a firearm, pursuant to U.S.S.G. 

S 2B3.1(b)(2)(C). While this enhancement would normally 

have applied to this carjacking offense, because Stevens 

also received a mandatory minimum ten-year concurrent 

sentence for carrying a firearm, under 18 U.S.C.S 924(c), 

the enhancement did not apply to the February 11 

carjacking. See U.S.S.G. S 2K2.4, App. Note 2.10 However, 

as reflected by the PSR, Stevens's sentence fully complied 

with the guidelines: pursuant to section 2K2.4, the

"brandishing" enhancement was specifically not applied to 

Stevens's sentence for the February 11, 1997 offense.11 The 

enhancement was applied, however, to Stevens's sentence 

for his February 6, 1997 carjacking offense, respecting 

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

_________________________________________________________________ 

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

 "Where a sentence under this section is imposed in conjunction 

 with a sentence for an underlying offense, any specific 

characteristic 

 for the possession, use, or discharge of an explosive or firearm . 

. . 

 is not to be applied in respect to the guideline for the underlying 

 offense." 

The Background Note states: 

 "18 U.S.C. SS 844(h), 924(c), and 929(a) provide 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 underlying offense, any specific 

 offense characteristic for explosive or firearm discharge, use, or 

 possession is not applied in respect to such underlying offense." 

11. Regarding the February 11, 1997 offense, Stevens did receive a fourlevel enhancement for abducting his victims, pursuant to U.S.S.G. 

S 2B3.1(b)(4), and a two-level enhancement for committing an offense 

that involved carjacking, pursuant to U.S.S.G. S 2B3.1(b)(5). 

12. Regarding the February 6, 1997 offense, Stevens received the twolevel carjacking enhancement, as well as a one-level 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). 
 16 
Conclusion 

Stevens's sentences are 

AFFIRMED. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

 17