## F I L E D United States Court of Appeals Tenth Circuit 

### DEC 29 1998 

### PATRICK FISHER Clerk PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. THOMAS W. FAGAN,

Defendant-Appellant. No. 97-3306

Appeal from the United States District Court

for the District of Kansas (D.C. No. 97-CR-10048)
Timothy J. Henry, Assistant Federal Public Defender , (David J. Phillips, Federal Public Defender, with him on the briefs), Federal P ublic Defender for the District of Kansas, Wichita, Kansas, for Appellant. Debra L. Barnett, Assistant United States Attorney, (Jackie N. Williams, United States Attorney, with her on the brief), United States Attorneys Office, Wichita, Kansas, for Appellee.

Before PORFILIO, BRORBY, and MURPHY, Circuit Judges.

MURPHY , Circuit Judge.-2-

Appellant, Thomas W. Fagan, appeals the district co urt’s denial of his motion for a downward departure. In his motion, Fa gan argued he was entitled to a downward departure from the Sentencing Guidelines because of his sincere remorse. The district court ruled that it lacked d iscretion to consider remorse as a factor warranting a downward departure and denied t he motion. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U. S.C. § 3742(a) and REVERSE and REMAND

. I. BACKGROUND In an indictment filed March 19, 1997, appellant, T homas W. Fagan, was charged with three counts of unarmed bank robbery i n violation of 18 U.S.C. § 2113(a). Fagan was arrested several days later and eventually pleaded guilty to all three counts contained in the indictment. The Presentence Investigation Report (PSR) computed Fagan’s total offense level at twenty-four and his criminal history category at I. This computation i ncluded a two level increase to the base offense level because the property of a fi nancial institution was taken and an additional two level increase because the pr obation officer who prepared the PSR concluded that Fagan had made an express th reat of death during one of the robberies. The computation also included a thr ee level decrease to the base offense level because Fagan had accepted responsibi lity for the offenses. Fagan1 The record contains evidence supporting Fagan’s cla im that his

remorsefulness was extreme and the government conce ded as much during the sentencing hearing. -3- objected to the two-level recommended enhancement f or the expressed threat of death and the district court sustained his objectio n. Prior to sentencing, Fagan filed a motion for a dow nward departure. Fagan argued that a combination of factors, including his exceptional remorse, supported a downward departure from the applicable sentencing guideline range. The district court denied Fagan’s motion, specifically ruling that it did not have the discretion to consider remorse as a factor to suppo rt the downward departure. 1 The court stated: “I would rather make the finding that I don’t have the discretion to make the departure . . . and hopefully then some definitive decision [will be made] by the circuit on whether, for example, remor se is a factor that can be taken into consideration . . . . So, in any event, I find that for the reasons stated that I do not have the discretion to grant the requ est of departure and it is denied.” The district court thus set Fagan’s total offense l evel at twenty-two. This offense level carried a guideline range of forty-on e to fifty-three months imprisonment. Fagan was sentenced to forty-one mon ths imprisonment. Fagan appeals the district court’s ruling that it did nothave the discretion to consider remorse as a factor justifying a downward departure from the Sentencing Guidelines.-4-

II. DISCUSSION A. Appellate Jurisdiction It is well settled that an appellate court lacks ju risdiction to review a sentencing court’s refusal to depart from the Sente ncing Guidelines when the sentencing court was aware that it had the authority to depart but declined to exercise that authority and grant the departure. See United States v. Soto , 918 F.2d 882, 883 (10th Cir. 1990)

. An appellate court, however, does have jurisdiction to review a sentencing court’s refusal to grant a downward departure when the refusal is based on the court’s conclusion that it lacks discretion to make the departure. See United States v. Spedalieri , 910 F.2d 707, 710 (10th Cir. 1990) (“We plainly have jurisdiction under 18 U.S.C . § 3742(e)(2) to review a district court's refusal to exercise discretion or its decision that it lacks discretion as a matter of law to depart downward.”). The unam biguous language used by the district court when it declined to grant Fagan’s mo tion expresses the court’s belief it was without discretion to depart downward on the basis of Fagan's remorse. Because the district court in this case specificall y held that it did not have the discretion to depart from the Sentencing Guidelines , its ruling is reviewable and this court has jurisdiction. See id.-5-

B. Standard of Review This court has previously reviewed a district court ’s ruling that it lacked discretion to depart from the Sentencing Guidelines de novo. See , e.g. , United States v. Mendoza-Lopez , 7 F.3d 1483, 1486 (10th Cir. 1993)

. In a superseding decision, the Supreme Court has adopted a “unitary abuse of discretion standard” with respect to appellate review of departure decis ions. See Koon v. United States , 518 U.S. 81, 98-102 (1996). The Supreme Court, h owever, also clarified that “whether a factor is a permissible basis for d eparture under any circumstances is a question of law and the court of appeals need not defer to the district court’s resolution of the point.” Id . at 100. Nevertheless, the Court concluded, that although “a departure decision, in an occasional case, may call for a legal determinations does not mean, as a conseque nce, that parts of the review must be labeled de novo while other parts are label ed an abuse of discretion.” Id

. Accordingly, consistent with Koon , this court must review departure decisions under an abuse of discretion standard, bu t legal conclusions underlying those decisions are reviewedde novo

. See In re Smith , 10 F.3d 723, 724 (10th Cir. 1993) (“We are bound by the precedent of priorpanels absent en banc reconsideration or a superseding contrary decision by the Supreme Court.”). “A2 Fagan was sentenced under the 1997 edition of the U nited States

Sentencing Commission's Guidelines Manual. All ref erences herein are to that edition. -6- district court by definition abuses its discretion when it makes an error of law.” Koon , 518 U.S. at 100. C. Permissible Departure Factors In response to the perception that sentencing court s meted out unjustifiably disparate sentences to similarly situated offenders , Congress passed the Sentencing Reform Act of 1984 and created the Unite d States Sentencing Commission (the “Commission”). See id

. at 92. The Commission was charged with “developing a comprehensive set of sentencing guidelines.” Id

. The Commission formulated a set of guidelines commonly known as the United States Sentencing Guidelines (the “Sentencing Guidelines”) 2

. See id . The sentencing court must now “impose on a defendant a sentence fa lling within the range of the applicable Guideline if the case is an ordinary one .” Id

. Although a court no longer has unfettered discretio n when sentencing an offender, it may depart from the applicable Sentenc ing Guideline range in certain circumstances. See id . Sentencing courts are authorized “to depart in c ases that feature aggravating or mitigating circumstances of a kind or degree not adequately taken into consideration by the Commissi on.” Id . at 94. Thus, the sentencing court can depart from the Sentencing Gui delines if it finds the3 “The forbidden factors are race, sex, national orig in, creed, religion, and

socioeconomic status, § 5H1.10; lack of guidance a s a youth, § 5H1.12; drug or alcohol dependence, § 5H1.4; and economic duress, § 5K2.12.” United States v. Collins , 122 F.3d 1297, 1301 n.3 (10th Cir. 1997). -7- presence of a factor that makes the case atypical. Id . Some factors, however, can never be used as a basis for a departure. 3 See id

. at 93. Unless specifically prohibited by the Sentencing Gu idelines, any factor may be considered as a potential basis for departure. See id . at 109. “[A] federal court’s examination of whether a factor can ever be an appropriate basis for departure is limited to determining whether the Com mission has proscribed, as a categorical matter, consideration of the factor. I f the answer to the question is no -- as it will be most of the time -- the sentencing court must determine whether the factor, as occurring in the particular circumst ances, takes the case outside the heartland of the applicable Guideline.” Id . Because remorse is not one of the factors specifically forbidden by the Sentencing Gu idelines, it may be a permissible departure factor in certain circumstanc es. See United States v. Jaroszenko , 92 F.3d 486, 490-91 (7th Cir. 1996) (holding thata sentencing court has the discretion to consider remorse as a factor supporting a downward departure).4 Section 3E1.1(a) of the Sentencing Guidelines allow s for an offender’s

offense level to be decreased by two levels if “the defendant clearly demonstrates acceptance of responsibility for the offense.” U.S. Sentencing Guidelines Manual § 3E1.1(a) (1997). If the defendant’s base offense level was calculated at level sixteen or greater, § 3E.1.1(b) of the Sentencing G uidelines authorizes the sentencing court to decrease the offense level by o ne additional level if the defendant has met the additional requirements set f orth in § 3E1.1(b). See id . § 3.E1.1(b). -8- D. Remorse as a Factor Meriting a Downward Departure Factors which may merit a departure are either enco uraged, discouraged, or not mentioned in the Sentencing Guidelines. See id

. at 95-96. The Supreme Court in Koon discussed the process by which the non-forbidden f actors should be evaluated when making a departure decision: If the special factor is an encouraged factor, the court is authorized to depart if the applicable Guideline does not alre ady take it into account. If the special factor is a discouraged fa ctor, or an encouraged factor already taken into account by the applicable Guideline, the court should depart only if the fact or is present to an exceptional degree or in some other way makes the c ase different from the ordinary case where the factor is present. If a factor is unmentioned in the Guidelines, the court must, afte r considering the “structure and theory of both relevant individual g uidelines and the Guidelines taken as a whole,” decide whether it is sufficient to take the case out of the Guideline’s heartland. Koon , 518 U.S. at 96 (citations omitted). In this case, Fagan’s base offense level was decrea sed by three levels because he accepted responsibility for his offenses 4 . The government argues that-9-

even if remorse is a permissible factor, Fagan is n ot entitled to an additional downward departure because remorse is an element of acceptance of responsibility. Several circuits have specifically held that a moral element is implicit in acceptance of responsibility and is sat isfied by the defendant’s expression of contrition and remorse. See , e.g., United States v. Bonnano , 146 F.3d 502, 513 (7th Cir. 1998) (affirming district c ourt’s decision not to grant a downward adjustment for acceptance of responsibility because defendant had not expressed remorse); United States v. Gallant , 136 F.3d 1246, 1248 (9th Cir.), cert. denied, 118 S.Ct. 2387 (1998) (same); United States v. Dyce , 91 F.3d 1462, 1469-70 (D.C. Cir. 1996) (holding that the Commissi on contemplated a moral element to acceptance of responsibility which is satisfied if the offender exhibits remorse); United States v. Defeo , 36 F.3d 272, 277 (2d Cir.1994) (holding that a sentencing court may deny the reduction for accepta nce of responsibility when the offender’s continued criminal conduct indicates “a lack of sincere remorse”); United States v. Brewer , 899 F.2d 503, 509 (6th Cir. 1990) (holding remors e is an element of acceptance of responsibility); see also Michael M. O'Hear, Remorse, Cooperation, and “Acceptance of Responsibility”: T he Structure, Implementation, and Reform of Section 3E1.1 of the Federal Sentencing Guidelines , 91 Nw. U.L. Rev. 1507, 1523-24 (1997).-10-

The commentary to Section 3E1.1 of the Sentencing G uidelines also indicates the Commission intended remorse to be a c omponent of acceptance of responsibility. See U.S. Sentencing Guidelines Manual§ 3E1.1 cmt. 2 (1997) (“This adjustment is not intended to apply to a def endant who puts the government to its burden of proof at trial by denyi ng the essential factual elements of guilt, is convicted, and only then admi ts guilt and expresses remorse.” (emphasis added)). This court has also intimated t hat remorse is a component of acceptance of responsibility. See , e.g. , Spedlieri , 910 F.2d at 712 (adumbrating that “contrition” is necessary to receive a downwar d departure for acceptance of responsibility). We find the reasoning of these cases persuasive and hold that remorse is a factor taken into account by the Sentencing Guideli nes under acceptance of responsibility. If a factor is already taken into account by the Sentencing Guidelines, it is a permissible factor for departur e if it is present to some exceptional degree. See United States v. Collins , 122 F.3d 1297, 1303 (10th Cir. 1997); cf

. United States v. Carter , 122 F.3d 469, 475-76 (7th Cir. 1997) (finding no error in district court’s ruling that, although defendant’s remorse had been recognized when his sentence was reduced for accept ance of responsibility, it could have departed further if it had found his rem orse to be exceptional). Because remorse is not a prohibited factor, but a f actor already considered in the-11-

Sentencing Guidelines, a sentencing court may depart downward if it finds that remorse is present to an exceptional degree. III. CONCLUSION The district court erred as a matter of law when itconcluded that it did not have discretion to consider remorse as a permissibl e factor that may warrant a downward departure in Fagan’s sentence. Because a district court abuses it’s discretion when it makes an error or law, this court holds that the district court abused its discretion when it failed to consider Fa gan’s remorse as a possible basis for a downward departure. Accordingly, we REVERSE and REMAND to the district court for a determination, consistent with this opinion, as to whether the remorse exhibited by Fagan in this case warrant s a downward departure from the Sentencing Guidelines.