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 Public 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.
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Appellant, Thomas W. Fagan, appeals the district court’s denial of his

motion for a downward departure. In his motion, Fagan argued he was entitled to

a downward departure from the Sentencing Guidelines because of his sincere

remorse. The district court ruled that it lacked discretion to consider remorse as a

factor warranting a downward departure and denied the 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, Thomas W. Fagan, was

charged with three counts of unarmed bank robbery in 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 included a two level increase to

the base offense level because the property of a financial institution was taken

and an additional two level increase because the probation officer who prepared

the PSR concluded that Fagan had made an express threat of death during one of

the robberies. The computation also included a three level decrease to the base

offense level because Fagan had accepted responsibility for the offenses. Fagan
1The record contains evidence supporting Fagan’s claim that his

remorsefulness was extreme and the government conceded as much during the

sentencing hearing.

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objected to the two-level recommended enhancement for the expressed threat of

death and the district court sustained his objection.

Prior to sentencing, Fagan filed a motion for a downward 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 support 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, remorse 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 request of departure and it is denied.” 

The district court thus set Fagan’s total offense level at twenty-two. This

offense level carried a guideline range of forty-one to fifty-three months

imprisonment. Fagan was sentenced to forty-one months imprisonment. Fagan

appeals the district court’s ruling that it did not have the discretion to consider

remorse as a factor justifying a downward departure from the Sentencing

Guidelines. 
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II. DISCUSSION

A. Appellate Jurisdiction

It is well settled that an appellate court lacks jurisdiction to review a

sentencing court’s refusal to depart from the Sentencing 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 unambiguous language used by the

district court when it declined to grant Fagan’s motion 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 specifically 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.
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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 decisions. See Koon v. United

States, 518 U.S. 81, 98-102 (1996). The Supreme Court, however, also clarified

that “whether a factor is a permissible basis for departure 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 consequence, that parts of the review

must be labeled de novo while other parts are labeled an abuse of discretion.” Id.

Accordingly, consistent with Koon, this court must review departure

decisions under an abuse of discretion standard, but legal conclusions underlying

those decisions are reviewed de novo. See In re Smith, 10 F.3d 723, 724 (10th

Cir. 1993) (“We are bound by the precedent of prior panels absent en banc

reconsideration or a superseding contrary decision by the Supreme Court.”). “A
2Fagan was sentenced under the 1997 edition of the United States

Sentencing Commission's Guidelines Manual. All references herein are to that

edition.

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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 courts meted out unjustifiably

disparate sentences to similarly situated offenders, Congress passed the

Sentencing Reform Act of 1984 and created the United 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 falling within the range of the

applicable Guideline if the case is an ordinary one.” Id. 

Although a court no longer has unfettered discretion when sentencing an

offender, it may depart from the applicable Sentencing Guideline range in certain

circumstances. See id. Sentencing courts are authorized “to depart in cases that

feature aggravating or mitigating circumstances of a kind or degree not

adequately taken into consideration by the Commission.” Id. at 94. Thus, the

sentencing court can depart from the Sentencing Guidelines if it finds the
3

“The forbidden factors are race, sex, national origin, creed, religion, and

socioeconomic status, § 5H1.10; lack of guidance as 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). 

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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 Guidelines, 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 Commission has proscribed, as a

categorical matter, consideration of the factor. If 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 circumstances, takes the case outside the

heartland of the applicable Guideline.” Id. Because remorse is not one of the

factors specifically forbidden by the Sentencing Guidelines, it may be a

permissible departure factor in certain circumstances. See United States v.

Jaroszenko, 92 F.3d 486, 490-91 (7th Cir. 1996) (holding that a sentencing court

has the discretion to consider remorse as a factor supporting a downward

departure). 
4Section 3E1.1(a) of the Sentencing Guidelines allows 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 Guidelines authorizes the

sentencing court to decrease the offense level by one additional level if the

defendant has met the additional requirements set forth in § 3E1.1(b). See id. §

3.E1.1(b).

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D. Remorse as a Factor Meriting a Downward Departure

Factors which may merit a departure are either encouraged, 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 factors 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 already take it into

account. If the special factor is a discouraged factor, or an

encouraged factor already taken into account by the applicable

Guideline, the court should depart only if the factor is present to an

exceptional degree or in some other way makes the case different

from the ordinary case where the factor is present. If a factor is

unmentioned in the Guidelines, the court must, after considering the

“structure and theory of both relevant individual guidelines 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 decreased by three levels

because he accepted responsibility for his offenses4

. The government argues that
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even if remorse is a permissible factor, Fagan is not 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 satisfied 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 court’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 Commission 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 acceptance 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 remorse is an

element of acceptance of responsibility); see also Michael M. O'Hear, Remorse,

Cooperation, and “Acceptance of Responsibility”: The Structure,

Implementation, and Reform of Section 3E1.1 of the Federal Sentencing

Guidelines, 91 Nw. U.L. Rev. 1507, 1523-24 (1997).
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The commentary to Section 3E1.1 of the Sentencing Guidelines also

indicates the Commission intended remorse to be a component of acceptance of

responsibility. See U.S. Sentencing Guidelines Manual § 3E1.1 cmt. 2 (1997)

(“This adjustment is not intended to apply to a defendant who puts the

government to its burden of proof at trial by denying the essential factual

elements of guilt, is convicted, and only then admits guilt and expresses remorse.”

(emphasis added)). This court has also intimated that 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 downward 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 Guidelines under acceptance of

responsibility. If a factor is already taken into account by the Sentencing

Guidelines, it is a permissible factor for departure 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 acceptance of responsibility, it

could have departed further if it had found his remorse to be exceptional). 

Because remorse is not a prohibited factor, but a factor already considered in the
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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 it concluded that it did not

have discretion to consider remorse as a permissible 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 Fagan’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 warrants a downward departure from

the Sentencing Guidelines.